Siu Ling v. Wong Sum-fai
Read the full judgment text of CACV 70/1981 on BabelCite. This Court of Appeal judgment.
1. The opposition to the Appellant's appeal has now been withdrawn. We have come to the conclusion that the appeal must be allowed. The question whether or not CHAN Wai had authority to contract on behalf of the 1st Defendant was not pleaded. As a result the issues which would have arisen upon such a plea were never fully investigated and the question whether section 5 of the Law Amendment and Reform Consolidation Ordinance applied was never raised. If the Plaintiff had amended the pleadings, th
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CACV000070/1981
----------------- Coram: Sir Alan Huggins, V.-P., Zimmern and Barker, JJ. Date of Judgment: 23rd July 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. The opposition to the Appellant's appeal has now been withdrawn. We have come to the conclusion that the appeal must be allowed. The question whether or not CHAN Wai had authority to contract on behalf of the 1st Defendant was not pleaded. As a result the issues which would have arisen upon such a plea were never fully investigated and the question whether section 5 of the Law Amendment and Reform Consolidation Ordinance applied was never raised. If the Plaintiff had amended the pleadings, then the 1st Defendant would have amended her pleadings. 2. As was said in Farrell v Secretary of State for Defence 1980 1 W.L.R. 172, 180A, the matter of pleading is not now unimportant and this is a good example where pleading was important. We think that the appeal must be allowed. 3. Turning then to the Respondent's Notice, it is said that, on the facts found, the judge should have held that the 2nd Defendant, was the agent of the 1st Defendant. He failed to find any primary facts: his finding really was one of credibility of the Plaintiff and of his witnesses. That may be a satisfactory formula in a very simple case, but it is not satisfactory in a complicated case such as this. Both sides have suggested matters which support their view of the evidence. If anything, the indicia suggested by Mr. Cheung seem to us to be of greater and more compelling weight than those which are advanced by Mr. Swaine. We appreciate that we must make up our own minds as to any proper inferences to be drawn from the facts and we realize that the view of the trial judge is a matter which has to be borne in mind. Nevertheless, we are not persuaded that the matters advanced by Mr. Swaine are sufficient to show that the judge was wrong in holding that the 2nd Defendant was not the agent of the 1st Defendant. 4. The cross appeal is therefore dismissed in so far as it affects the 1st Defendant. 5. We have already alluded to the fact that in his judgment the learned judge made a blanket finding as to credibility rather than making individual findings of fact. We think that the only fair reading of his judgment upon the matter which is now in issue as between the Plaintiff and the 2nd Defendant is that the judge, having expressly referred to the 2nd Defendant's explanation for having finally agreed to sign the provisional agreement and as to the circumstances in which it was signed, disbelieved the 2nd Defendant entirely, and that must include his disbelief of the 2nd Defendant's explanation. If that be right it follows that the 2nd Defendant by signing the agreement did warrant that he had authority, and it is found that he had no authority. That being so, the 2nd Defendant is liable. It only remains to add that it was suggested that negligence on the part of the Plaintiff was at least to some extent an answer to the claim. That we think cannot be right. 6. We are not at the moment ready to give a decision on the issue of damages. We shall take time to consider this matter and give judgment later. 23rd July 1981. Representation: |