Read the full judgment text of HCSA 28/2019 on BabelCite. This Court of First Instance judgment was delivered on 25 November 2020 before 黃國瑛.
Civil law – small claims tribunal – appeal – leave to appeal – driving instruction – refund of test car rental fee – whether tribunal erred in law – contra proferentem – Service Provider (Implied Terms) Ordinance (Cap 457) – whether leave to appeal should be granted under s.28 of the Small Claims Tribunal Ordinance (Cap 338) – facts summary: appellant engaged respondent as private driving instructor, took three 45-minute lessons at HK$250 each between 8 and 22 July 2017, and paid HK$1,600 for car rental on road test date 5 September 2017; appellant did not take further lessons and postponed the test; appellant sought refund of the HK$1,600 contending the respondent as service provider had failed to proactively arrange further training – procedural history: Small Claims Tribunal dismissed the claim; review refused; application for leave to appeal to Court of First Instance – legal issues: (1) whether contra proferentem applied to the simple WhatsApp fee terms, held no because terms were clear and not complex and there was no inequality of bargaining power (Kei Siu Hung v CAF Securities Co Ltd applied on appellate review of factual findings); (2) whether the tribunal erred in failing to apply the implied term under Cap 457 that the respondent provide service within a reasonable time, held no because the challenge was essentially to a factual finding that both parties shared responsibility for arranging lessons; (3) whether the tribunal wrongly relied on non-existent contractual terms about postponement and non-refund, held no because the tribunal's conclusion that the appellant unilaterally postponed the test was a factual finding not open to challenge on appeal – outcome: leave to appeal refused, no costs order.
Legal issues: Application of contra proferentem to driving lesson fee terms · Implied term to provide service within reasonable time under Cap 457 · Reliance on non-existent contractual terms regarding postponement and refund
Outcome: Application for leave to appeal refused; the appellant is not granted leave to appeal from the Small Claims Tribunal's review decision.
Cited by 53 cases · Cites 1 case