Kim v. Kim Date:, 2011 BCPC 123

Citation: Kim v. Kim Date: 20110429 2011 BCPC 0123 File No: C9666 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SUK CHUN KIM dba KOREAN FINE ART CLAIMANT AND: SUNG KWON KIM dba CARAVAN MOTEL DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Appearing for the Claimant: Suk Chun Kim, in person Appearing for the Defendant: Sung Kwon Kim, in person Place of Hearing: Port Coquitlam, B.C.

Dates of Hearing: April 23 and August 13, 2010, and April 1, 2011 Date of Judgment: April 29, 2011 INTRODUCTION [ 1 ] This case offers yet another cautionary tale—they are often told and frequently ignored—regarding the risks of combining business with friendship. [ 2 ] The claimant Suk Chun Kim dba Koran Art (“Mr. Claimant Kim”) is in the business of conducting home renovations and other forms of construction in and around Coquitlam, B.C. The defendant Sung Kwon Kim dba Caravan Hotel (“Mr.

Defendant Kim”) owns a house on Parkway Boulevard in Coquitlam (the “Parkway Blvd House”) but now carries on business as a motel operator in Fort St. John. Before the matters in issue in this action arose, the parties both resided in Coquitlam and were close family friends. [ 3 ] When the motel-related business opportunity arose for him in Fort St. John, Mr. Defendant Kim and his wife Sook Mee Hur (“Ms. Defendant Kim”) vacated the Parkway Blvd House so that it could be repaired and renovated for sale, given their intention to reside ultimately in Fort St. John. Mr. Defendant Kim engaged his friend, Mr.

Claimant Kim, among others, to carry out that work. [ 4 ] Now a dispute has arisen between Mr. Claimant Kim and Mr. Defendant Kim about the quality and sufficiency of the work performed, the charges for it and other losses that Mr. Defendant Kim says he has suffered by reason of the contractual defaults and other acts and omissions of Mr. Claimant Kim. Mr. Claimant Kim, for his part, seeks payment of his account for the services he did render under contract to Mr. Defendant Kim before the contract was terminated early and he disputes the allegations about deficiencies and ancillary losses that Mr.

Defendant Kim has made against him. The parties’ lost friendship is a casualty that does not figure directly in the adjudication of this business dispute but, in human terms, it is no less a loss to both parties for all of that. The loss of the friendship appears to be a lasting legacy of the parties’ ill-advised decision to add a business dimension to their long-standing personal

relationship. I can only express the hope that the parties will both accept the outcome of the litigation that their business dealings have spawned and then move quickly past it. THE CLAIMS AS PLEADED [ 5 ] Mr. Claimant Kim’s Notice of Claim pleads that he entered into an oral contract with Mr. Defendant Kim in early 2007 to perform renovation services at the Parkway Blvd House. He says that the contract was, in effect, repudiated by Mr. Defendant Kim before all of the work could be completed. Mr.

Claimant Kim acknowledges receiving, by late April, instalment payments amounting to $10,000 on account of the contract work done to that point. Not long thereafter he accepted Mr. Defendant Kim’s repudiation, ceased work and, thereafter, has not received payment of the balance owning despite having made demand therefor . [ 6 ] Mr.

Claimant Kim’s claim as initially pleaded was comprised of $15,995—the amount then noted in his Notice of Claim to be outstanding for completed work rendered under contract and which he alleged remained unpaid (in breach of contract)—plus $950 to compensate for the cost of filing a builder’s lien, $1,050 in interest, and filing and service fees of $176. (I pause here, parenthetically, to interject that no evidence was led to prove that the parties included a contractual interest provision in their agreement.) [ 7 ] At the commencement of trial Mr.

Claimant Kim amended his claim to seek a total of $24,395 as the amount outstanding on the contract, based upon what he testified is a correct reconciliation of the monies he says are owing under the contract. A document, entitled “Modified Total Claimed Money”, setting out that reconciliation was exhibited at trial. (It is plain on the face of the original Notice of Claim that an arithmetical error had been made in subtracting the acknowledged payments from the contract amount stated thereon.

That arithmetical error accounts, in large measure, for the necessary amendment.) In addition to the principal amount of $24,395, Mr. Claimant Kim asserts the same additional amounts as appear in his original pleading (for the builder’s lien, etc.). However, the addition of the builder’s lien claim for $950 alone is sufficient to raise the total principal amount of the claim above the maximum monetary jurisdiction of this court. Accordingly, Mr. Claimant Kim’s claim as a whole is statutorily limited to $25,000 plus interest and filing and service fees. [ 8 ] In his Reply, Mr. Defendant Kim contends that Mr.

Claimant Kim agreed under their oral contract to complete renovations at the Parkway Blvd House by the end of March of 2007. He further contends that Mr. Claimant Kim “made a mistake so that the ceiling of the basement was sagged” and alleges, as well, that he agreed to postpone receipt of any monies under the contract until the Parkway Blvd House was sold. Somewhat in contradiction of that plea, Mr. Defendant Kim acknowledges that he paid some monies to Mr. Claimant Kim for his services—even though the house remained unsold at the time of trial—and that Mr.

Claimant Kim agreed to accept that in full satisfaction of Mr. Defendant Kim’s payment obligation under the oral contract. (I understand this amount to be the $10,000 that Mr. Claimant Kim admits to having received in two $5,000 instalments on account of the contract.) [ 9 ] Mr. Defendant Kim also asserts a counterclaim against Mr. Claimant Kim seeking $4,000 for “paint work unfinished”, $5,000 for “basement ceiling repair estimate” and $16,000 representing mortgage charges allegedly incurred while the house stood empty for a year, implicitly owing to the contractual defaults and omissions of Mr.

Claimant Kim and the delays allegedly resulting therefrom . To these amounts are added filing fees of $156, yielding a total sought on the counterclaim of $25,156—that is, the maximum allowable under this court’s monetary jurisdiction, plus fees. DOCUMENT DISCLOSURE [ 10 ] At settlement conferences heard earlier in the sequence of pre-trial appearances leading to trial in this matter, document production orders were made requiring that the parties exchange all relevant documents and then put the ones they intended to rely upon at trial in indexed and tabbed binders for use at trial.

Neither party complied fully with those production and trial preparation orders. However, it must be said that the degree of compliance shown by Mr. Claimant Kim vastly exceeds that shown by Mr. Defendant Kim (who produced almost no documentation whatsoever to substantiate his defences or his counterclaim). CREDIBILITY GENERALLY [ 11 ] Much of the evidence at trial was not relevant to the specific matters in dispute regarding performance of the repair and renovation contract. I found it necessary to caution Mr.

Defendant Kim, particularly, against lengthening the trial unnecessarily by attempting, repeatedly, to give evidence regarding personal issues arising from the parties’ dealings with one another as friends that were not material to the aspects of the work at the Parkway Blvd House that are in dispute. [ 12 ] With respect to the aspects of the repair and renovation project that are in dispute, the parties for the most part gave wholly irreconcilable accounts of the subject events. Both accounts cannot be true. It is unusual, in a civil case, to see such wide divergence in the evidence.

Because that wide divergence exists, I must devote more space in these reasons than usual to the issue of credibility. [ 13 ] This case requires that I evaluate the reliability and trustworthiness of the evidence of both parties with great care. I must assess what the parties said within the context of the dictates of common sense. I must decide whose evidence I can believe and whose evidence I must reject and then proceed to make factual findings based upon the evidence I am able to accept.

That process begins with a determination of what the parties agreed to do under their oral contract, continues to a recounting of the parties’ versions of what happened in relation to the performance of that contract and then culminates with an assessment of the evidence setting out my conclusions based upon the evidence that I am able to accept. THE PARTIES’ CONTRACT [ 14 ] There being no written agreement between the parties, I must determine the terms of the parties’ bargain by reference to the evidence they led at trial.

That evidence consists of the parties’ testimony, the documents (estimates, invoices and the like) that were marked as exhibits and the parties’ conduct. Insofar as some of the written material is inscribed in Korean characters, and not all of it was translated in the course of oral testimony, the challenge of discerning what the true terms of the parties’ agreement is considerable. However, having regard to the evidence and making the best sense of it I am able in these circumstances, I find that the contractual terms were as follows:

(

a) Mr. Defendant Kim required that certain renovation and repair services be performed to the Parkway Blvd House and Mr. Claimant Kim agreed to perform those services. (

b) The parties agreed, on the basis of an initial estimate dated January 15, 2007 prepared by Mr. Claimant Kim and approved by Mr. Defendant Kim, that those services would cost $23,100 and that they would consist of the following: i . Interior painting of the basement and two upper floors; ii . Outside painting; iii. Installation of kitchen furnishings; iv. Demolition and disposal of existing kitchen furnishings; v. Kitchen wall tiling; vi. Bathroom repairs, including to a whirlpool; vii. Repair to gutter downspout and flashing; viii. Repair to “outside ceiling”; ix. Repair to baseboard heater cover; x.

Repair to flooring and mouldings; xi. Repair to window screen; xii. Installation of a light fixture; and xiii. Miscellaneous other repairs. (

c) Not long after the initial estimate was prepared the parties agreed, as the project progressed and further needs were revealed, that certain additional work would be done at a further cost of $8,895. That additional work was to consist of: i . Second floor deck and waterproofing; ii. First floor sanding and painting; and iii. The installation of appliances. (

d) Mr. Defendant Kim granted Mr. Claimant Kim discretion to identify other needed extras and to proceed with them at a cost that generally reflected the approach to costing of the work that was covered in the initial estimate, but only after obtaining Mr. Defendant Kim’s verbal approvals to do the further items of extra work at their estimated cost. (

e) The parties agreed that Mr. Defendant Kim would make periodic payments to Mr. Claimant Kim on account of the work being performed as it progressed but without specifying a particular

schedule of payments. [ 15 ] As I have noted, I find as a fact that Mr. Defendant Kim did not specify a particular deadline by which the repairs and renovations to the Parkway Blvd House were to be completed. Correspondingly, I find that Mr. Claimant Kim did not undertake, contractually, to complete the work by a particular date. Where parties do not give specific definition to an important element of their bargain (such as the timing of completion), the court has the power to imply into it such terms as are necessary to give the contract commercial efficacy.

I infer from the evidence at trial that the timeline for completion of the work was a reasonable one, having regard to, among other things, the facts that: (

a) the work could not commence until after January 15, 2007 at the earliest—the date of the first estimate; (

b) Mr. Claimant Kim’s ability to do parts of the work was affected by the activities of other trades on site working on the Parkway Blvd House renovation overall; (

c) extras were being identified and added to the project from time to time as the project progressed; and (

d) certain work, including the exterior painting, could not be carried out until the spring of 2007 when the rainy season had passed. [ 16 ] It can be seen from the foregoing that I am unable to accept Mr. Defendant Kim’s plea and evidence that Mr. Claimant Kim contractually agreed to have all of the renovation and repair work for which he was responsible finished by the end of March of 2007. That timing does not make sense for seasonal reasons as I have mentioned; neither does it accord with Mr. Claimant Kim’s uncontroverted evidence that Mr.

Defendant Kim made his first $5,000 progress payment on March 28 th (the alleged deadline) and his second progress payment (also for $5,000) on April 19 th (well after the alleged deadline). THE PARTIES’ EVIDENCE REGARDING PERFORMANCE OF THE CONTRACT Mr. Claimant Kim and his Witnesses [ 17 ] According to Mr. Claimant Kim, the entire dealings between the parties were loose, informal and based largely on trust. That, he

said, is how he has done business with other members of his ethnic community over a period of decades although, ordinarily, he takes the step of reducing contractual terms to writing. Here he did not take that step. [ 18 ] Mr. Claimant Kim testified that he did not invoice Mr. Defendant Kim periodically while the work was underway, but that he kept him apprised of the progress that was being made with photographs and e-mails. Dozens of those photographs were exhibited at trial. As the work proceeded, Mr.

Claimant Kim received two progress payments—one in March and one in April, 2007—each (as noted above) in the amount of $5,000. [ 19 ] While Mr. Claimant Kim normally does renovation projects with a crew, this project was of smaller dimensions than those he typically handles and so he did most of the work at issue himself. He involved his son, his wife and one helper to a small extent only. [ 20 ] Mr. Claimant Kim’s claim for unpaid services is not based on hourly rates for himself or his son, wife and helper.

He testified that he billed to his original estimate ($23,100), and to the estimates he provided as and when extra work was identified and approved. [ 21 ] Mr. Claimant Kim’s evidence was that the project unfolded in a manner satisfactory to all, commencing in mid-January and continuing to the end of April. While Mr. Defendant Kim was for the most part out of town dealing with his new motel, Ms. Defendant Kim had moved into an apartment a short distance away on Parkway Boulevard so that she could oversee the renovation work of all of the contractors, including Mr. Claimant Kim.

She attended at the site from time to time to do so and on occasion she also accompanied Mr. Claimant Kim to suppliers such as IKEA for the purpose of selecting and paying for materials. [ 22 ] A large part of the work envisioned by the original estimate and the approved extras was completed during the months of March and April. Mr. Claimant Kim said, credibly, that the fact that Mr. Defendant Kim made progress payments to him of $5,000 each in late March and late April fortified him in his belief that no objection was being taken with the quality or rate of progress of his work. [ 23 ] Then, in May, Mr.

Claimant Kim says Mr. Defendant Kim’s wife began, for the first time and unexpectedly, to complain about aspects of the work. For example, Ms. Defendant Kim complained about there being too many glass cupboard doors in the kitchen, yet those glass doors—as construction materials—had, he said, been selected by Ms. Defendant Kim herself and purchased at IKEA for the project in her presence. Her own evidence-in-chief confirmed this. [ 24 ] Mr. Claimant Kim gave evidence about a dishwasher flood causing secondary damage that features prominently in Mr. Defendant Kim’s counterclaim. On Mr. Claimant Kim’s evidence, Mr.

Defendant Kim had in the month before work started (December, 2006) himself tried but failed to repair the discharge piping for the dishwasher at the Parkway Blvd House. Unfortunately, while it was disconnected, Ms. Defendant Kim ran the dishwasher. The discharged water damaged various features of the surrounding structures, the wooden floor and other kitchen finishings . The work required to remedy that damage was included in the original estimate defining, in part, in what Mr. Claimant Kim was engaged to do (“repair for flooring and moulding”).

However, on his evidence, not all of the damage resulting from the dishwasher flood was immediately visible and it took time to manifest. When it was discovered that the water that had been pumped out of the dishwasher’s unconnected discharge pipe had seeped under hardwood flooring, into OSB panelling and generally spread, Mr. Claimant Kim testified he notified Mr. Defendant Kim of some of the extra work required to deal with the water damage (“sanding and painting [staining] first floor hardwood floor” at $1,800). Mr.

Claimant Kim testified that, as with all extras, that extra was made the subject of a verbal estimate that was communicated to Mr. Defendant Kim and approved before the extra work was actually performed. [ 25 ] Mr. Claimant Kim’s evidence was that a sagging basement ceiling requiring repair and painting—which is a central element in Mr. Defendant Kim’s counterclaim—was late-manifesting damage caused by the dishwasher flood that occurred in the December preceding the commencement of the renovation work in January. Mr.

Claimant Kim testified that the ceiling repair and painting were never part of his original estimate for basement work—it was expressly left out if it, he said—and Mr. Defendant Kim declined to approve it as an extra, saying that he would deal with it himself, later. [ 26 ] To the extent that certain items of work included in the initial estimate were not actually done due to early termination of the contract, Mr. Claimant Kim (as I have said) testified that he has deducted them from his claim as it is now framed and presented. The final reconciliation that Mr.

Claimant Kim prepared in this regard (which was exhibited at trial), shows, item-by-item, the amounts that were subtracted to reflect the specific items of work that were not done before termination, those that were added as extras, and those where the cost was, for whatever reason, raised or lowered. An example of this is the exterior painting. Materials were purchased by Mr. Claimant Kim, and paid for, but the actual painting work was not expected to begin until the weather was suitable. Relations between the parties had soured by that time and so none of the actual, exterior painting work was performed.

The $4,000 estimated labour cost for performing it has thus been deducted from Claimant’ Kim’s claim. [ 27 ] The reconciliation shows a revised total, inclusive of what Mr. Claimant Kim testified were approved extras, of $34,395. [ 28 ] Mr. Claimant Kim gave extensive testimony about deficiencies that Mr. Defendant Kim’s wife found in the interior painting work he had performed at the point where, suddenly and unexpectedly, she began to indicate displeasure concerning his work overall.

He said that he arrived at the project site one day in May to find that a putty knife had been used by her to apply filler in hundreds of places to surfaces that had already been prepared and painted. Prior to this, no issue had been raised with him by Ms. Defendant Kim or anyone concerning the quality of the painting or the surface preparation prior to the application of the putty. Mr. Claimant Kim disputes that there were any surface irregularities that warranted that unilateral action—action that, he emphasizes (and Ms.

Defendant Kim confirmed), was taken without notice to him and, importantly, without the taking of any photographs of the surfaces said to be in need of remedial filling verifying their condition. Of course, once the filler had been applied, it was no longer possible for anyone to determine the condition of the surfaces beneath it. [ 29 ] Despite what he perceived to be growing evidence that Mr. Defendant Kim, through his wife, was on the hunt for imaginary deficiencies and appeared to be building a case for withholding payment, Mr. Claimant Kim testified that he did continue to work for a time on the project.

However, as the complaining continued and it became more and more apparent that payment for the project was likely to be contentious, Mr. Claimant Kim said he received and acted on legal advice that I interpret to be that he treat the Defendant Kims ’ conduct as a repudiation, withdraw from the project and file a builder’s lien against title to the subject property to secure payment

of his account. That happened at about the end of May or early June. It is not disputed that no further payments have been made to Mr. Claimant Kim. [ 30 ] Mr. Claimant Kim denies that he accepted, or ever would have accepted, the $10,000 he acknowledges having received on account of the project in March and April in full satisfaction of all of the work done there. He also denies that he did, or ever would, agree to have Mr. Defendant Kim’s payment obligation tied to the uncertain timing of a possible future sale of the Parkway Blvd House. THE DEFENDANT’S EVIDENCE Mr.

Defendant Kim and his Witnesses [ 31 ] In many respects the sworn testimony of Mr. Defendant Kim and his witnesses did not specifically engage the specifics of the evidence of Mr. Claimant Kim. Mr. Defendant Kim did not specifically challenge the estimates to which Mr. Claimant Kim testified and that he exhibited. Importantly, he confirmed that he received the initial estimate that discloses many of the amounts finally charged. He did not specifically deny or contradict Mr. Claimant Kim’s testimony regarding the mechanism for approving extras or the final reconciliation of amounts owing that were exhibited.

With a few exceptions he and his witnesses did not even testify to having found substantive faults with the particular items of Mr. Claimant Kim’s work that are referred to in the estimates and reconciliation. [ 32 ] While the documents he exhibited included lists of specific complaints and the value of the same, Mr. Defendant Kim and his witnesses did not cover most of what is noted in those lists in their sworn testimony and so the lists have minimal evidentiary value.

They contain conclusory assertions, mostly without documentary backup and all but one without photographic backup, impugning the quality and sufficiency of the work done and the charges for that work. To the limited extent that the conclusory assertions were purportedly backed up by estimates, those estimates are in the nature of post facto second-guessing. They were made long after Mr. Claimant Kim had ceased working on the project, mostly by individuals who did not testify at trial. They quoted lower amounts for work that other evidence I have accepted shows Mr.

Defendant Kim had earlier approved at higher amounts. [ 33 ] Beyond that, a substantial part of the evidence that Mr. Defendant Kim and his witnesses gave was of limited or no relevance to the matters directly in controversy. As I noted above, I do not consider it necessary to comment on all of the evidence called by Mr. Defendant Kim and his witnesses. Rather, I will focus in these Reasons on those aspects that go to the issues principally in dispute and to my assessment of credibility. [ 34 ] I turn to the specific objections to the performance by Mr.

Claimant Kim of his obligations that did come up in the testimony of Mr. Defendant Kim and his witnesses. (

a) The Timetable for Performance of the Contract [ 35 ] Mr. Defendant Kim testified vehemently that it was a term of the contract he had with Mr. Claimant Kim that the work had to be completed by the end of March and that Mr. Claimant Kim breached that term by progressing too slowly. I have already noted, in the part of these Reasons dealing with the terms of that contract, that I am unable to accept Mr. Defendant Kim’s evidence in that regard and, in a brief way, I have explained why.

Some further expansion on that subject is warranted and I offer it below. [ 36 ] The exhibits and testimony at trial confirm that kitchen cabinetry was ordered from IKEA in January and had to be pre-fabricated before Mr. Claimant Kim could install it. Granite countertop material could not be cut to size for installation on that cabinetry until it was in place and precise, “as built” measurements could be made. An exhibited Pacific Granite document showing the required dimensions of one piece of such granite countertop material bears a March date.

This and other evidence, together with the absence of any documentation specifying or supporting a targeted March completion, reinforces my conclusion that the March deadline asserted by Mr. Defendant Kim was never the subject of consensus by the parties and, having regard to the practicalities of the project (including the need to

schedule exterior painting for the late spring) would have been an unattainable deadline in any event. Indeed, as I have noted and will mention again for emphasis, the fact that Mr. Defendant Kim made progress payments in late March and late April, without complaint as to the pace or quality of the project, stands in stark contradiction of his contention that he had secured a contractually enforceable promise from Mr. Claimant Kim to complete his work by the end of March. (

b) The Alleged Painting Deficiencies [ 37 ] Both Mr. Defendant Kim and Ms. Defendant Kim testified that the interior painting done by Mr. Claimant Kim was grossly sub- standard in that it involved only one coat and that that coat was applied to surfaces that were dented and scraped and weren’t properly prepared before painting. [ 38 ] Mr. Claimant Kim denied this allegation, saying that two coats were applied to all surfaces in accordance with ordinary painting practice and that those coats achieved satisfactory coverage.

He further testified that all of the surface preparation work that would ordinarily be done to deal with dents and scrapes was done prior to the painting. [ 39 ] I cannot accept all of the Defendant Kims ’ evidence in this regard. Mr. Defendant Kim spent most of the relevant time in Fort St. John and so is unable to speak, from personal knowledge, about almost all of the subject complaints, including those relating to paint coverage and surface preparation. Surprisingly, Ms. Defendant Kim testified that she was locked out of the Parkway Blvd House by Mr.

Claimant Kim for much of the time that work was underway there. If this evidence could be accepted (which it cannot) then she, too, could not have seen how many coats of paint were being applied as the painting progressed. [ 40 ] Importantly, no photographs were introduced that could attest objectively to the deficient state of the painting. Neither was expert evidence called by Mr. Defendant Kim to speak to the insufficiency of the coverage or the surface preparation. Beyond a certain point, only an expert witness can give helpful evidence on such subject matter. [ 41 ] Mr. Claimant Kim acknowledged that Ms.

Defendant Kim was an infrequent presence at the Parkway Blvd House when he was working in it, but that she did stop in from time to time. I take from that evidence that she would not have been present often enough to

be able to give reliable evidence about the number of coats of paint that were applied based on seeing the painting in progress. I also take from that evidence, however, that she would have been able to observe at least some painting-over of unresolved surface irregularities during her periodic visits and that she would have been in a position to raise her concerns about that with Mr. Claimant Kim while the painting work was still underway.

She did not do so in circumstances where common sense tells us that a reasonable person acting in her own interests would have voiced objection to sub-standard work as it was unfolding. [ 42 ] Mr. Yong Niu (“Mr. Niu ”) was called as a witness by Mr. Defendant Kim. He was engaged to carry out remedial surface preparation and painting work after Mr. Claimant Kim had left the site. Mr.

Niu was not an independent witness and I am mindful of the fact that he had a pecuniary interest in finding fault with the state of the painting because, to the extent it was considered deficient, he stood to generate revenue from carrying out additional painting and surface preparation to remedy the deficiencies. Nevertheless, I consider that Mr. Niu was a truthful witness and he did say that in some areas it was clear to him that the paint had been applied had not achieved satisfactory coverage. He also testified that in some areas the surface preparation was not all that it could and should have been.

Importantly, while he acknowledged some lapses he did not condemn the work as irredeemably deficient in the way that Mr. Defendant Kim and Ms. Defendant Kim did—an aspect of his testimony that made it more balanced and credible in my view. [ 43 ] Altogether I cannot accept the Defendant Kims ’ evidence that the painting work was wholly and grossly deficient in either of the ways they claim it was deficient. But neither can I accept Mr. Claimant Kim’s evidence that it was all done to a satisfactory, workmanlike standard.

I therefore find that the painting work was deficient to a degree, based on the evidence of Mr. Niu . Clearly, part of what Mr. Niu had to do was made necessary by the fact that Ms. Defendant Kim had gone about the house applying putty in hundreds of locations, concealing the state of the surfaces beneath and necessitating repainting in any event. But there was also some remedial painting that had to be done in order to address those areas where the existing coat (or coats) failed to achieve adequate coverage. [ 44 ] Taking all of that into account, along with the evidence that Mr.

Niu gave that he was paid $4,000 to do follow up painting work at the Parkway Blvd House, I find that $1,500 worth of that can be legitimately allocated to making good deficiencies in the work done by Mr. Claimant Kim. Accordingly, I find as a fact that while the painting, including surface preparation, was in places done to a workmanlike standard, $1,500 worth of remedial work was required to bring it fully up to a reasonably satisfactory standard. [ 45 ] This latter finding does not, however, displace my conclusion that the way the issue was raised by Ms.

Defendant Kim—by the rather dramatic act of applying hundreds of putty patches after the painting was completed and without ever raising the deficiencies with Mr. Claimant beforehand—was a ploy by Ms. Defendant Kim and her husband to set the stage for justifying non-payment of the outstanding portion of Mr. Claimant Kim’s account. (

c) The Sagging Basement Ceiling [ 46 ] Mr. Defendant Kim, mainly through the testimony of Ms. Defendant Kim, sought to establish that the sagging basement ceiling was the result of some “mistake” made by Mr. Claimant Kim during the course of his work in which he cut a water line or pipe and caused a serious flood that permitted water to flow from the main floor down to the basement causing distortions, deflections, staining of the basement ceiling and other damage. Ms. Defendant Kim gave evidence that Mr.

Claimant Kim locked her out of the Parkway Blvd House during much of the renovation project’s currency and would not permit her entry to it. Without saying how it came to pass that she finally did gain entry, she testified that when she got into the house she found Mr. Claimant Kim frantically at work trying to clean up a major flood with a “wet vac” shop vacuum. Her evidence was that he was at pains to keep her from discovering what was afoot. One would have expected Ms. Defendant Kim, at the very least, to have taken photographs of such a critical event in the life of this troubled project.

No such photographs were produced or introduced into evidence by the defendants. [ 47 ] The above account of how the basement ceiling came to be damaged is flatly denied by Mr. Claimant Kim who, as I have noted, attributes it to the failed dishwasher repair that Mr. Defendant Kim had himself performed a month earlier and the release of water that occurred when Ms. Defendant Kim ran the dishwasher before the discharge piping had been reconnected. Importantly, the Mr.

Defendant Kim does not deny that a dishwasher leak occurred; rather, he and his wife said that it was a small one that could not be implicated in the damage to the basement ceiling. [ 48 ] There are several problems with the Defendant Kims ’ evidence in this regard. I will mention only four. [ 49 ] First, I find it improbable that Mr. Claimant Kim would and could exclude Ms. Defendant Kim from her own house. (While both Defendant Kims testified that Ms. Defendant Kim gave Mr. Claimant Kim all of the keys to the house, that conduct would be entirely inconsistent with her role as the overseer of the project.) Ms.

Defendant Kim gave no believable evidence as to how she could be prevented from gaining access to the Parkway Blvd House, at will, by using the keys that she must have retained for her own use. Indeed, Mr. Claimant Kim said she was a periodic, though not particularly frequent, observer there during the renovations. (Recall that she took up temporary residence nearby so that she could oversee the work at the house while her husband was away. Had she been locked out and prevented from giving that oversight, would not that have led to a confrontation and a possible return by Mr.

Defendant Kim to Coquitlam to sort the problem out?) [ 50 ] Second, it will be recalled that Mr. Claimant Kim’s responsibilities represented only a part of an overall, large-scale renovation of the Parkview Blvd House. The evidence established that other trades (electricians, for example) were also involved, carrying out other aspects of the project. Common sense recoils from Mr. Defendant Kim’s suggestion that Mr. Claimant Kim would or could unilaterally bar access to others from the renovation project job site.

Such exclusive control over comings and goings—even to the exclusion, it is contended, of the owners—would interfere with the others involved in the project and their need to be present and active on it, particularly given Mr. Defendant Kim’s assertion that Mr. Claimant Kim and his helpers were often away doing other jobs for days at a time. [ 51 ] Third, no other persons working on site were called to verify the assertion that Mr. Claimant Kim caused a severe flood, originating on the main floor, that led to large parts of the basement floors being covered in one inch of water and requiring a massive cleanup.

That, surely, would have been a memorable event that would have interfered with the work of other contractors’ forces on site. One would expect Mr. Defendant Kim to call such independent evidence and I draw an adverse inference from the fact he did not.

[ 52 ] Fourth, a flood of the proportions described by Ms. Defendant Kim in her evidence would be expected to cause damage well beyond that to the ceiling. Water entering the basement in torrents from a broken pipe on the floor above would naturally cause damage to walls as well and, to the extent it covered the floor in any depth, one would expect to see damage to basement drywall at the baseboard level and to the baseboards themselves. No such damage was referred to in the evidence of Ms. Defendant Kim or Mr.

Defendant Kim. [ 53 ] A less voluminous leak, of the sort that would result from a limited release of a finite quantity of water from a dishwasher discharging into the space between the main floor and the ceiling below, is more consistent with the basement ceiling sagging and staining damage that was described by all witnesses who observed it. I cannot accept that a severe, flowing water flood incident of the kind referred to by the Defendant Kims in their evidence occurred, or that being generally locked out of the house, it was a stroke of pure unexplained luck that led to Ms.

Defendant Kim succeeding in getting back into the house at the very time when Mr. Claimant Kim was trying to cover his tracks and clean up all evidence of the flood. The credibility of Ms. Defendant Kim’s testimony in that regard was further undermined by Mr. Defendant Kim’s conflicting testimony that Mr. Claimant Kim had applied multiple coats of paint to the affected area of the ceiling in order to conceal the problem. If, as Ms. Defendant Kim testified, she caught Mr.

Claimant Kim in the act of trying to clean up the flood before it was detected, then painting and repainting the ceiling to conceal stains would not have been to any avail because the fact of the flood and its effects were already known to Ms. Defendant Kim. [ 54 ] Based upon all of the foregoing, I find as a fact that such damage as is visible in the basement ceiling was late-manifesting damage that resulted from a faulty dishwasher repair carried out by Mr. Defendant Kim. I further find that, as Mr. Claimant Kim testified, Mr.

Defendant Kim expressly declined to approve repair of the damaged ceiling as an extra, saying that he would deal with it himself later. (

d) Failure to Reimburse for Returned Goods [ 55 ] Ms. Defendant Kim testified that materials that she purchased from IKEA on a credit card issued to her in her name, with Mr. Claimant Kim present, exceeded the needs of the project and that the surplus items were returned to IKEA by Mr. Claimant Kim. She further testified that Mr. Claimant Kim retained the receipt, returned the extra items, obtained the refund monies (in the range of $1,000 to $2,000) and did not pass them back to her or to Mr. Defendant Kim. [ 56 ] Mr.

Claimant Kim flatly denies the truthfulness of that account and raises the virtually unassailable point that no merchant would be likely to refund purchase monies for goods bought with a credit card to any person other than the credit card holder. [ 57 ] I cannot accept as credible the evidence given by Ms. Defendant Kim regarding the failure of Mr. Claimant Kim to pass refunded monies to her and I find that no such monies were wrongfully obtained and retained by Mr. Claimant Kim. (

e) Delays Due to Other Projects [ 58 ] Much evidence was led by Mr. Defendant Kim and his wife regarding the slow pace of the project and the fact that Mr. Claimant Kim was not on site continuously. Apart from the fact that this evidence presupposes an ability to monitor Mr. Claimant Kim’s presence on site in circumstances where he says Ms. Defendant Kim was locked out of her own house by him, this evidence fails to take account of the fact that the nature of the tasks assumed by Mr. Claimant Kim necessitated periodic absences. Time had to be given up so that other trades could do their work.

The granite countertop could not be measured, cut and installed until the cabinetry was in. The cabinetry could not be installed until it was pre-fabricated. The cabinetry could not be pre-fabricated until it was designed. It is reasonable to expect that a contractor like Mr. Claimant Kim would work on other projects during “down time” on Mr. Defendant Kim’s project. It is unreasonable for Mr. Defendant Kim to expect Mr. Claimant Kim to have been continuously present on his project.

It is more unreasonable still for him to attribute delay and ancillary losses to those delays without having called evidence to show that any of the absences complained of were unjustified by showing that work on Mr. Claimant Kim’s project could have been done but wasn’t being done, or that Mr. Claimant Kim’s inactivity was holding up other trades at particular times when they were ready, willing and able to proceed. [ 59 ] I have commented before on the inferences I have drawn from the fact that Mr. Defendant Kim made instalment payments of $5,000 each in late March and April in circumstances where Mr.

Claimant Kim’s uncontradicted evidence is that the greater portion of the work was completed by late April. Those payments were not, apparently, accompanied by any objections about the quality or quantity of the work done to that point and they therefore stand as evidence of general approbation, at that stage, of Mr. Claimant’s performance under the renovation and repair contract—both as to quality and pacing. [ 60 ] I find that no delays to the project at the Parkway Blvd House can be attributed to a failure on the part of Mr.

Claimant Kim to proceed at reasonable speed with the repairs and renovations he was assigned to carry out there. (

f) Borrowing Costs Incurred While House Unoccupied [ 61 ] Mr. Defendant Kim’s counterclaim includes a claim for “mortgage paid for empty house for one year”. However, he did not introduce any evidence regarding what those borrowing costs were, the time when the property was ready for occupation or the steps he took to obtain renters for it. More importantly, the evidence Mr. Defendant Kim led did not establish (as I have noted above) that delays in completion of the repairs and renovations to the Parkway Blvd House were attributable to breaches of contract or to any other fault on the part of Mr. Claimant Kim.

There is a myriad of reasons, including market conditions prevailing at the time, that could account for the difficulties Mr. Defendant Kim encountered in his efforts to rent the property and such evidence as he did lead fell far short of proving on a balance of probabilities that any acts or omissions of Mr. Claimant Kim figured as a causal factor in that outcome. (

g) Uninstalled Kitchen Shelving [ 62 ] Ms. Defendant Kim testified that kitchen shelving that should have been installed by Mr. Claimant Kim remained uninstalled when he left the job. This evidence was corroborated by Mr. Niu who took

part in the later installation of those shelves. In Mr. Claimant Kim’s final reconciliation, the “basic installation” work in the kitchen is shown to have been completed; indeed, the charge for it was increased by $500 over the original estimate.

[ 63 ] The evidence about the actual time it took for Mr. Niu , with Mrs. Defendant Kim’s assistance, to complete the kitchen shelf installation is unclear, but it is said to have taken about 4-5 hours. In all the circumstances I consider that this entitles the defendants to a $250 discount on the charges for the kitchen installation work. (

h) Unrepaired Baseboard Heater Cover [ 64 ] Ms. Defendant Kim testified that a kitchen baseboard heater cover also remained unrepaired by Mr. Claimant Kim when he left the job and, in this regard, Mr. Niu also offered corroborating evidence. The amount claimed by Mr. Claimant Kim in this regard is $600 and I consider that the defendant is entitled to have the claim discounted by $600 for work that I find was not completed. (

i) Builder’s Lien [ 65 ] Following his departure from the Parkview Blvd House jobsite, Mr. Claimant Kim paid a lawyer to provide him with legal advice with respect to the filing of a lien against title to the property. Mr. Defendant Kim testified that he, too, incurred legal fees with respect to the lien which I understand he ultimately had discharged after a one year period had passed without Mr. Claimant Kim having taken any steps to enforce his lien rights. [ 66 ] The lien has, quite clearly, played no

part in the ultimate disposition of the parties’ dispute. While I heard no evidence regarding the amount Mr. Defendant Kim had to pay his lawyer to obtain advice as to how to deal with the lien and ultimately have it discharged, I consider it to be a reasonable surmise that that amount would not have differed greatly from the $950 that Mr. Claimant Kim paid to get the necessary advice to have the lien registered. [ 67 ] Mr. Claimant Kim’s lien was, at the end of the day, ineffective to give him any benefit because he did not take the necessary follow-up steps to enforce and realise upon it as security. Mr.

Defendant Kim’s actions to have it discharged, by contrast, were effective to remove a blot from title to the Parkway Blvd House. [ 68 ] On that basis, I consider that Mr. Defendant Kim has established a basis for counterclaiming $950 to cover his own lien-related legal fees. I further consider that, in these circumstances, Mr. Claimant Kim’s claim for lien-related legal fees is not maintainable. CONCLUSIONS AND DISPOSITION [ 69 ] In the foregoing presentation of the evidence tendered on behalf of both parties, I have candidly noted that I have: (

a) Accepted most, but not all, of the evidence tendered by and on behalf of Mr. Claimant Kim; and (

b) Rejected most, but not all, of the evidence tendered by and on behalf of Mr. Defendant Kim. [ 70 ] Those credibility determinations have been central to my final conclusions regarding the main claim and the counterclaim. The Main Claim [ 71 ] As to Mr. Claimant Kim’s claim, I disallow the portions of it that are based upon contractual interest ($1,050) and lien-related legal fees ($950) for the reasons I have given above. [ 72 ] I further discount Mr.

Claimant Kim’s claim by a total of $850 to reflect the work on kitchen shelves ($250) and the baseboard heater cover ($600) that I have found were charged for but not done. [ 73 ] Mr. Claimant Kim’s amended claim is for $24,395. With the above $850 subtracted from it, the net amount is $23,545. The Counterclaim [ 74 ] With regard to Mr. Defendant Kim’s counterclaim, I allow it as to the $1,500 on account of sub-standard and unfinished painting for the reasons I have given above. [ 75 ] As to the remainder, as I have noted: (

a) the portion of the counterclaim for unfinished paint work beyond the $1,500 I have allowed ($2,500) has not been proven and is therefore dismissed; (

b) the portion for damage to the basement ceiling ($5,000) has not been proven to have resulted from a breach of contract or other acts or omissions of Mr. Claimant Kim is therefore dismissed; and (

c) the portion for borrowing expenses incurred over a one-year period when the Parkway Blvd House stood empty ($16,000), allegedly due to the delays and defaults of Mr. Claimant Kim, has not been proven and is therefore dismissed. [ 76 ] Practicality suggests that where a claimant succeeds to a degree on his claim and the defendant succeeds to a degree on his counterclaim, the smaller amount should be subtracted from the larger such that the party who comes out ahead emerges with judgment for the net amount. There is precedent for proceeding in this practical way: see, for example, Philips v.

Telus Corporation , 2002 BCPC 499 at para . 25 . [ 77 ] After applying all appropriate discounts, the quantum of Mr. Claimant Kim’s proven main claim against Mr. Defendant Kim is, as I have noted above, $23,545. That establishes Mr. Claimant Kim as the party who comes out ahead in this case. Mr. Claimant Kim’s claim is offset by the $1,500 that Mr. Defendant Kim has proven in respect of his counterclaim. When the proven counterclaim is subtracted from the proven main claim, Mr.

Claimant Kim has a net recovery of $22,045, plus $176 in filing and service fees, plus pre- judgment interest on $22,045 calculated, by the registry, from July 7, 2007—a date approximately 30 days following the time when work

ceased and thus a reasonable date for Mr. Claimant Kim to have received payment for that work—to April 29, 2011 (today’s date, the date of judgment). [ 78 ] Mr. Defendant Kim must pay to Mr. Claimant Kim $22,221 (that is, $22,045 plus $176), plus prejudgment interest on $22,045 as calculated by the registry. He shall have until June 30, 2011 to file and serve any application for payment deferral under Rule 11(2) and (5) that he may wish to bring, failing which the judgment plus prejudgment interest shall on that date (June 30, 2011) be payable in full and Mr.

Claimant Kim will be at liberty to set down a payment hearing and otherwise proceed with all of the realisation measures open to him as a judgment creditor under the Small Claims Rules . [ 79 ] Mr. Defendant Kim has been only nominally successful in these proceedings: he realised a very small, fractional recovery on his counterclaim. Mr. Claimant Kim has, in the true sense of the term, been the “successful party” in these proceedings for the purposes of Rule 20(2). Accordingly, and as I have already stated, only Mr. Claimant Kim is entitled to his filing and service fees under Rule 20(2) (

a) and(b). The same is true with respect to “reasonable expenses” recoverable under Rule 20(c). [ 80 ] In the event that the parties cannot agree on the charges and fees that are payable by Mr. Defendant Kim to Mr. Claimant Kim pursuant to Rule 20(2 )(

c) of the Small Claims Rules , the parties may

schedule a hearing before a registrar for a determination of the quantum of those charges. Any need that may arise for such a hearing at a future date shall not affect Mr. Defendant Kim’s obligation to pay to Mr. Claimant Kim $22,221 plus court plus pre-judgment interest as determined by the registry, by June 30, 2011, if he has not, by that date, filed and served application documents seeking a payment deferral order under Rules 11(2) and (5). [ 81 ] Order accordingly. ____________________________ Thomas S. Woods, P.C.J.