大象商旅服務（深圳）有限公司 v. Rich Travel Service Ltd

DCCJ 5846/2018

[2020] HKDC 80

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5846 OF 2018

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Before:  Deputy District Judge Barbara Wong in Chambers

Date of Hearing:  10 December 2019

Date of Decision: 17 January 2020

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DECISION

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Introduction

1.By summons dated 14 November 2019, the plaintiff sought leave to appeal against the Decision of this Court dated 29 October 2019 and an extension of 2 days to make such application. 

2.The reason for the delay in filing the application for leave was that the office of Solicitors for the plaintiff was in Central which at that time had been the venue of a number of large-scale protests resulting in staff being unable to attend to their daily work in any regular fashion.  The application for extension was not opposed.  The Court accordingly granted the application for extension pursuant to powers conferred on the Court by Order 58 Rule 2(10) of the Rules of the District Court.

3.Leave to appeal is sought by the plaintiff on the basis of the plaintiff’s alternative claim of mistake.  In a skeleton argument filed with the Court prior to the hearing, the plaintiff’s Counsel elaborates on its grounds which are quoted as follows (including the bold and underlined as stated in the said grounds):-

“(a)  Contrary to §7 of the Judgment, P’s argument was that the payments were made in its mistaken belief that it “had entered into the Ticket Sale and Purchase Agreements with the defendants and such payments were to settle invoices issued by the defendant (Amended Statement of Claim §10A);

(b)  It has never been P’s case that the payment to D’s account per se was a mistake.  In contrast, P knew full well that it was paying into D’s account and there was no mistake as to that;

(c)  The crucial element of P’s case is that P made payments to D in the belief that P had entered into an agreement with D, pursuant to invoices which had been issued by D.  In this regard, D claims that it had not entered into any agreement with D but were false instruments. Proceeding on the basis that D’s case is accepted in full, the belief which caused P to make the payments to D was mistaken.

(d)  For this reason, the Court erred in dismissing the summary judgment on the. Grounds that there was no mistake because P intended to make payments to D.”

4.Having carefully considered the above grounds for leave to appeal by the plaintiff, the Court cannot regrettably find that the grounds of appeal put forward by the plaintiff affords the plaintiff any reasonable grounds of success in an appeal.  As stated in paragraph 10 of my Decision, any assertion of mistaken belief cannot simply be looked at in a vacuum.  As the invoices produced by the plaintiff clearly indicate, the payments are to be made to the defendant and there clearly is no mistake as to the payment.  The alleged payment by mistake arises from the defendant’s defence that there was no commercial relationship between the defendant and the plaintiff, but that does not necessarily mean that the defendant has to refund the plaintiff.  The facts revealed by the evidence filed with the Court, indicate that whether or not there is a contractual relationship with the defendant or another contractual relationship, are matters which require a trial.  The observations of the Court in this respect are set out from paragraphs 12 – 15 of the Court’s Decision, as to which the plaintiff provides no answer.  

5.If anything, the grounds of appeal reinforce the conclusion that there are triable issues in this case.  In ground (c), it is asserted that the since the defendant claims that it had not entered into any contractual relationship with the plaintiff, then the invoices must be false instruments.  As observed by the Court in paragraph 12 of its Decision, the payment to the defendant under the invoices could indicate a number of scenarios.  It does not follow that the invoices were false instruments but if the plaintiff were to insist on this characterisation, then clearly there is at least a triable issue.

Decision

6.In the circumstances, the Court regrettably refuses leave to appeal.

7.The Court will make an order nisi that the costs of this application (including the application for extension of time) be to the defendant, with certificate for Counsel, to be taxed if not agreed, in accordance with the District Court Scale.  This order nisi shall become absolute if no application for variation is made within 14 days of this Decision.

8.Finally, I would like to thank Counsel for their assistance in this application.

Mr Justin Lam, instructed by Raymond Siu & Lawyers, for the plaintiff

Mr Alan Lo, instructed by C F Lee & Co, for the defendant