Bel International Logistics Ltd v. Cts International Logistics Corporation (HK) Ltd
Read the full judgment text of HCA 1619/2019 on BabelCite. This High Court CFI judgment was delivered on 24 November 2023.
1. This is the trial of a dispute between two freight-forwarding companies. The plaintiff (“Bel”) says that there was an oral agreement (“the Oral Agreement”) between Bel and the defendant (“CTSHK”), by which CTSHK had agreed to bear the fees for the services provided by Bel to Sino Top Logistics Ltd (“Sino Top”). Based upon the Oral Agreement, CTSHK ought to but has failed to pay about HK$3.3 million to Bel. Bel is now claiming for these outstanding fees. CTSHK denies the existence of the O
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HCA 1619/2019 [2023] HKCFI 3000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1619 OF 2019 ____________
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______________ J U D G M E N T ______________ A. INTRODUCTION 1.This is the trial of a dispute between two freight-forwarding companies. The plaintiff (“Bel”) says that there was an oral agreement (“the Oral Agreement”) between Bel and the defendant (“CTSHK”), by which CTSHK had agreed to bear the fees for the services provided by Bel to Sino Top Logistics Ltd (“Sino Top”). Based upon the Oral Agreement, CTSHK ought to but has failed to pay about HK$3.3 million to Bel. Bel is now claiming for these outstanding fees. CTSHK denies the existence of the Oral Agreement and the liability to pay Bel. CTSHK counterclaims against Bel for about HK$1.2 million, which (according to CTSHK) are the fees overpaid to Bel. 2.In this trial, Bel is represented by Mr Justin Lam, and CTSHK is represented by Mr Isaac Chan (together with Mr Adrian TY Wong). Sino Top is not a party in these proceedings, and no one from Sino Top has given evidence in this trial. B. THE AGREED FACTS 3.I would first set out the agreed facts. 4.Bel is a Hong Kong-incorporated company established in 1978 carrying on business of providing logistic and air transportation services. It is and was at all material times a Regulated Agent (“RA”) registered with the Civil Aviation Department (“CAD”). 5.CTSHK is a Hong Kong-incorporated company established in 2010 carrying on business of providing air freight forwarding services. It is and was at all material times a RA registered with the CAD. 6.As RAs, Bel and CTSHK are required to follow the Handling Procedures for Regulated Agent Regime published by the CAD (“the Handling Procedures”) from time to time and to meet certain documentation requirements set out in the same for tendering consignments to a Cargo Terminal Operator for processing. 7.Since 2015, Bel and CTSHK have been offering and acquiring services of (a) consolidating shipment or sharing of freight transportation, and (b) lending/borrowing master air waybills (“MAWBs”), to and from each other from time to time. 8.Sino Top was at all material times a company engaged in the business of trading and forwarding services. 9.On or about 24 April 2017, Mr Wong Kim Hei Alien of Bel (“Alien”, Bel’s Air Transport Manager at the material times) and Mr Wong Chun Yip Wilson (“Wilson”, then of a company called Win Cargo International Logistics Limited (“Win Cargo”)) commenced a Skype chat conversation between themselves (“Alien/Wilson Group”), which lasted until around September 2019. 10.On or about 7 September 2017, a chat group was set up among (a) Alien, (b) Mr Or Chuen Po (“Po”, Bel’s Assistant Operations Manager at the material times), and (c) Wilson (“Alien/Wilson/Po Group). Messages were exchanged in this chat group until December 2018. 11.On or about 20 December 2018, a Skype group chat was set up between (a) Alien and Po of Bel with (b) Wilson of Sino Top (“Bel/ST Group”). Messages were exchanged within the Bel/ST Group until July 2019. 12.On or about 8 January 2019, a Skype group chat was set up among (a) Po of Bel; (b) Mr Ying Chin Keung Horton (also known as “Engine”, CTSHK’s Operations Manager at the material times) of CTSHK; and (c) Wilson of Sino Top (“Tripartite Group”). Alien of Bel and Ah Fai (“Fai”, Engine’s assistant at the material times) of CTSHK were added into the Tripartite Skype Group subsequently in January 2019. Messages were exchanged within the Tripartite Group until 28 May 2019, save for the period between 11 April and 6 May 2019. 13.The subject matters in these proceedings are some invoices issued by Bel to CTSHK during the period from December 2018 to May 2019. These invoices are for the freight-forwarding services provided by Bel to Sino Top.
14.The parties have agreed that:
C. THE PARTIES’ RESPECTIVE CASES 15.I would first set out the parties’ respective cases. C1. Bel’s claim 16.Bel’s claim as pleaded in the Re-Amended Statement of Claim is as follows:
17.As per Bel’s pleaded case, Bel’s claim is based upon the Oral Agreement, alternatively the Implied Agreement and/or the estoppel pleaded in the Re-Amended Statement of Claim. C2. CTSHK’s case 18.CTSHK denies the existence of the Oral Agreement. In their Re-Amended Defence and Counterclaim, it is pleaded:
19.CTSHK also denies the Implied Agreement and the estoppel as pleaded by Bel. 20.CTSHK counterclaims for the sums paid to Bel under the Disputed Invoices in the Counterclaim. CTSHK’s case is that “[CTSHK] was misled by the presentation of [the Disputed Invoices in the Counterclaim] and under mistake of fact that they did request or order from [Bel] the Co-loading Services and/or MAWB Assignment Services as particularized in [the Disputed Invoices in the Counterclaim] and mistakenly caused to pay the same to [Bel] … and [Bel] had received the same.”[5] CTSHK claims that Bel has been unjustly enriched at the expense of CTSHK. C3. Bel’s defence to CTSHK’s counterclaim 21.Apart from the Oral Agreement, Bel is also relying upon the following as defences to CTSHK’s counterclaim:
D. THE AGREED ISSUES 22.The parties have agreed that the issues to be resolved in this trial are as follows[8]:
E. THE EVIDENCE 23.Bel’s pleadings are verified by statements of truth signed by Mr Lau Chi Kwong (“Lau”, Bel’s Director). CTSHK’s pleadings are verified by a statement of truth signed by Huang, CTSHK’s Managing Director. 24.In this trial, Bel has called Alien, Mr Li Wai Ho (“Li”, Bel’s General Manager at the material times) and Po to give evidence. Bel has not called Lau to give evidence. CTSHK’s witnesses are Huang and Engine. E1. The principles 25.In assessing the evidence given by the witnesses, I bear in mind the guidance given by DHCJ Eugene Fung SC in Hui Cheung Fai and another v Daiwa Development Limited[10]. In that case, the learned judge said:
26.I also bear in mind the well-established summarized by DHCJ Thomas Au (as hen then was) in Lee Fu Wing v Yan Paul Po Ting[11] as to assessment of witnesses’ evidence:
27.Both Mr Lam and Mr Chan have made submissions that adverse inference should be drawn against the other side for the absence of a particular witness from that party. On the question of drawing adverse inferences by reason of the absence of a witness, the Court of Appeal has given guidance in Li Sau Keung v Maxcredit Engineering Ltd[12], which has been applied by DHCJ Lisa Wong (as she then was) in South China Securities Ltd v Lam Kwen Yuen[13]. In that case, the learned judge said:
28.I now turn to discuss the evidence given by the witnesses. The gist of the evidence given by each witness is summarized in the below. E2. Bel’s witnesses E2.1 Po 29.According to Bel’s pleaded case, the Oral Agreement is an oral agreement reached between Po and Engine in a telephone conversation on or about 10 December 2018. The veracity of the Oral Agreement therefore hinges on the credibility and the reliability of Po’s evidence. 30.Being joining Bel, Po worked at Sun Cargo International Ltd (“Sun Cargo”) and then WTC Logistics Ltd (“WTC”). These companies are also freight forwarders and RAs. Po started to work in Bel in the second half of 2018. His rank in Bel was Assistant Operations Manager. He was the subordinate of Alien. 31.Before the occurrence of the events leading to the dispute in this case in late 2018, Po had known Engine and Wilson for 7 and 8 years. Po regarded Wilson and Engine as his friends. The three of them would meet each other regularly for social purposes, and the frequency of meetings was about twice a week. 32.By November 2018, Po knew that Wilson had established a new company to carry out his freight forwarding business. Po did not know the name of Wilson’s company at that time. However, Po knew that Wilson had been placing orders with Bel via WTC since October 2018, since he was in the Alien/Wilson/Po Group. 33.At a time in late November 2018, Po received a phone call from Wilson. Wilson told him that Sino Top had large quantities of cargo which were to be shipped to the US, and wished to use air cargo space provided by Cathay Pacific (“CX”). Wilson asked Po whether Bel, which had access to CX air cargo space, could provide services to Sino Top. Wilson also said that he preferred to have a quotation covering the services in one season from Bel if possible. If that could not be given, Bel could provide an ad hoc quotation for each order. Po told Wilson that he would need to seek instructions from his superior. Po then orally reported the matter to Alien. 34.Subsequently, Alien told Po that the management had made the following decision:
35.Po then called Wilson and informed him the management’s decision. Wilson told Po that perhaps Sino Top would place the orders through CTSHK. Po told Wilson that he could directly talked to CTSHK. No matter who was the middle agent, the prices given by Bel would be the same. 36.In early December 2018, Po received a phone call from Wilson. Wilson told him that Sino Top had already discussed with CTSHK, and Sino Top would obtain Bel’s services through CTSHK. 37.Immediately after that telephone conversation, Po called Engine to seek confirmation from Engine. Po sought confirmation with Engine over the phone, to which Engine replied “係啊，Sino Top果單嘢照去啦，無問題”. Po said that in fact he could not remember the exact words said by Engine. However, his memory is that Engine was referring to the agreement among Bel, CTSHK and Sino Top when he said “果單嘢”. 38.Although Bel, CTSHK and Sino Top had agreed to work together, the mode of cooperation had not been discussed. Po said that a mode of cooperation was adopted impliedly. That mode of cooperation (“Initial Mode of Cooperation”) was as follows:
39.However, the Initial Mode of Cooperation was unsatisfactory, for CTSHK often delayed in giving replies and in following up the relevant documentation. 40.On or around 10 December 2018:
41.Since then, Bel adopted the Second Mode of Cooperation. After testing this new mode of cooperation for a few days, upon Wilson’s suggestion, Po (with Alien’s agreement) established the Bel/ST Group on 20 December 2018 to facilitate communication and exchange of documents. 42.After Bel obtained from CX the cargo freight rates for 2019 in mid-December 2018, Po sent a WhatsApp message to Wilson on 28 December 2018 containing CX’s rates for specified ports in North/Central America (“CX 2019 Annual Quotation”). Po did not send the same to Engine until 25 January 2019. 43.Despite the adoption of the Second Mode of Cooperation, Po accepted in cross-examination that he saw the need to let Engine know the details of Sino Top’s orders before shipments. The documentary evidence on this point is as follows:
44.As from 1 January 2019, Bel charged CTSHK pursuant to the Second Mode of Cooperation, based upon the CX 2019 Annual Quotation. 45.On 8 January 2019, following Alien’s instruction, Po created the Tripartite Group to keep all parties in the loop. 46.Under cross-examination, Po was asked why he requested Wilson to stop forwarding matters in the Tripartite Group on 10 April 2019, and why there was no activity in that group between 11 April 2019 and 6 May 2019. As to these questions, Po was unable to provide any answer. 47.In mid-2019, when the dispute between Bel and CTSHK had surfaced and before commencement of these proceedings, Bel’s management had enquired with Po regarding the details of the matters leading to the dispute, and Po had given a full account to the management. E2.2 Alien 48.Alien mentioned the following matters in his evidence. 49.He joined Bel as an Air Cargo Manager in 2017, and he was in that post at all material times. Po was his subordinate in Bel at all material times. Since 2018, he and Po dealt with CTSHK’s orders for US and European shipments. Bel was specialized in doing such shipments. Alien and Po would communicate with CTSHK’s staff by email and phone, and through Skype. CTSHK’s business focused on Mainland and South-East Asian shipments.50.Alien had known Wilson since at least April 2017. At that time, Wilson was working in Win Cargo. Alien seldom contacted Wilson for social purposes. Alien only met Wilson once at a meeting with people in the industry in September 2017. Alien, together with Po, also met Wilson once in early 2020. 51.Wilson left Win Cargo in about early August 2018. In late October 2018, Wilson approached Alien to seek quotations for Bel’s services via WTC. As a result, several deals were done up to early November 2018. In those deals, Alien treated WTC as Bel’s counterparty. 52.Alien knew that Wilson had established a new company to carry out his freight forwarding business, but did not know the company’s name or whether he was acting as its representative. On 1 November 2018, Alien knew that Wilson’ new company was trying to obtain the RA status when Alien and Wilson discussed whether a particular shipment could be done directly between Wilson’s company with Bel or whether the shipment should be done through WTC. However, Alien was not aware that Wilson was acting as his company’s representative until 5 November 2018. 53.In late November 2018, Alien was informed by Po that he received a call from Wilson as representative of Sino Top, indicating that Sino Top intended to do business with Bel directly. Alien instructed Po to inquire with Wilson whether Sino Top was a RA, and Po later reported to Alien that Sino Top was not yet a RA. 54.Alien reported the matter to Bel’s management, which decided that Sino Top would need to do business with Bel through a RA. After knowing the management’s decision, Alien asked Po to relay the message to Wilson. Alien believed that Po did pass the message to Wilson. 55.In early December 2018, Po informed Alien that he had received a call from Wilson. Wilson told Po that Sino Top would do business with Bel through CTSHK. Thereafter, Alien and Po confirmed the same by phone with Engine. Alien said that it was necessary to have such confirmation from Engine, for the volume of consignments and communications to be handled was expected to be large. 56.At that time, the mode of cooperation adopted by Bel, CTSHK and Sino Top was the Initial Mode of Cooperation. Alien agreed that in the Initial Mode of Cooperation, CTSHK was kept in the loop. However, CTSHK frequently delayed in giving replies. 57.As to the agreement to the Second Mode of Cooperation, Alien essentially repeated Po’s version of the events that took place on or about 10 December 2018. Alien said that unlike the time when Bel and CTSHK started the Initial Mode of Cooperation, he himself did not call Engine to double-confirm whether Engine had agreed to the Second Mode of Cooperation, because he regarded the changes were only some operational matters, which were not significant. The new mode of cooperation was prompted by the need for speed in transport. 58.As to the correspondences in mid to late December 2018:
59.In Alien’s witness statement, Alien mentioned that the provision of the provision of MAWB Assignee’s Undertaking (“the Undertaking”)[16] by CTSHK to Bel for MAWB Assignment Services is merely a safety requirement imposed by the CAD. However, under cross-examination, Alien confirmed that the Undertaking is viewed by Bel internally as an important document for the completion of a job. Without receiving the relevant Undertaking, Bel would not be able to issue an invoice to CTSHK. Alien also agreed that the Undertaking is the only document in which CTSHK could show its agreement to accepting liability for a particular transaction vis-à-vis the lending RA. 60.By March 2019, Alien was repeatedly asking Wilson for helping him to meet his tonnage targets, for Wilson would always be able to provide large volume of cargo. 61.Alien did not dispute that between December 2018 and March 2019, there were over 110 transactions between Bel and CTSHK on Sino Top account, involving around HK$6.1 million. 62.Between April and May 2019, while there was no activity in the Tripartite Group, Bel would occasionally send out emails on Sino Top’s orders and issue invoices, copying to, inter alia, CTSHK (“the April/May Emails”). Alien disagreed that a reasonable person receiving such emails would not think that they had anything to do with CTSHK. 63.Between 17 May 2019 and 21 May 2019, Sino Top further placed 12 orders with Bel pursuant to the Oral Agreement. 64.On 21 May 2019, Engine sent out a message in the Tripartite Group, asking for holding all the bookings relating to Sino Top. 65.After 21 May 2018, although Bel had ceased to take new orders from Sino Top within the tripartite cooperation context, it did not cease to work with Sino Top. Alien had discussed with Wilson over the phone as to how to deal with the remaining cargo committed by Sino Top. Thereafter, Sino Top placed 55 direct orders with Bel in the next 2 months. Alien said that Bel’s policy of not having any direct deal with a non-RA was not an inflexible policy, and the key was whether the non-RA was creditworthy. 66.In late June 2018, Alien came to know that Wilson was in financial trouble and owed CTSHK HK$12m. By that time, Bel was primarily concerned with recovering what Sino Top owed to Bel. 67.Alien also said that Bel’s management and Bel’s lawyers had made enquiries with him, and he had told them all he knew in relation to the dispute herein. E2.3 Li 68.Li joined Bel as an Air Cargo Manager in 2016, and was promoted to General Manager in the same year. At all material times, he was Alien’s supervisor. Save and except the following matters, Li did not personally participate in any matter relating to the dispute in these proceedings. 69.On 14 June 2019, Li met Huang in a restaurant in Kwun Tong (“the 14.06.2019 Meeting”). In that meeting, Huang told him that CTSHK had stopped cooperation with Sino Top on 1 April 2019. Li said that if that was the case, CTSHK should have immediately notified Bel, so that Bel could promptly cease to accept Sino Top’s orders. Huang said that his colleagues did not do well in the matter. 70.On 18 June 2019, Li met Huang and Mr Samson Chai of CTSHK, and Wilson of Sino Top, at a coffeehouse in Kwun Tong (“the 18.06.2019 Meeting”). In that meeting, Wilson admitted that the Disputed Invoices in the Original Claim were all related to orders directly placed by Sino Top with Bel. Huang then demanded to change the addressees of the invoices to Bel. Li objected. Li was of the view that the suggested amendment was contrary to the initial mode of cooperation accepted by Bel. This was because Bel would only accept to work with a familiar counterparty, and would avoid to have any direct dealing with a newly established company, so that risk could be avoided. At the end of that meeting, Wilson promised to repay all debts owed to Bel through CTSHK. Li did not object to this, but Li did not promise if Sino Top did not pay CTSHK, CTSHK would have no need to pay Bel. 71.On 22 July 2019, upon knowing that Wilson had signed a personal guarantee dated 3 June 2019 (“the Guarantee”) in favour of CTSHK for HK$12m (“the Guaranteed Amount”), Li (in Wilson’s presence) recorded a phone call (“22.07.2019 Call”) between Wilson and Ms Brenda Wong (“Brenda”, CTSHK’s Finance Manager), without Brenda’s consent. In the 22.07.2019 Call, Brenda suggested that the Guaranteed Amount covered the amounts in the Disputed Invoices in the Original Claim. Li then called Huang to inform Huang that Brenda had confirmed that the Guaranteed Amount covered the sums in the Disputed Invoices in the Original Claim. Huang replied that he was unclear about the contents of the 22.07.2019 Call, and he needed some time to understand the situation. Subsequently, Li followed-up the matter by WeChat messages, but did not have a substantive reply from Huang. 72.In Huang’s supplemental witness statement, Huang said (a) the copy of the Guarantee disclosed as item 15 of Bel’s Supplemental List of Documents was incomplete; (b) the full version of the Guarantee should be the one produced by Huang and marked as exhibit “RH-3” in his supplemental witness statement; and (c) the Guaranteed Amount did not cover any sums under the Disputed Invoices in the Original Claim. In Li’s supplemental witness statement filed in response to Huang’s supplemental witness statement, the aforesaid matters mentioned by Huang was not touched upon. E3. CTSHK’s witnesses E3.1 Engine 73.According to Bel’s pleaded case, the Oral Agreement was reached between Po and Engine in a telephone conversation between them on or about 10 December 2018. Naturally, the witness from CTSHK who could give direct evidence on the Oral Agreement is Engine. 74.At all material times, Engine was CTSHK’s Operations Manager, and his supervisor was Huang. By late 2018, he had known Po for more than 8 years through the introduction of his relatives, and had known Wilson for more than 5 years through Po’s introduction. Until May or June 2019, Engine and Po would have meal gatherings around 2-3 times a month. 75.In or about November 2018, Wilson contacted Engine by phone. Wilson asked Engine in respect of a possible arrangement involving Sino Top procuring Bel’s services though CTSHK. Wilson said that since Sino Top was a new company without a RA license, Bel refused to deal with Sino Top directly. Engine told Wilson that CTSHK would be agreeable to such a tripartite arrangement on the conditions that (a) Sino Top’s orders would be subject to CTSHK’s acceptance; (b) CTSHK would be entitled to charge a top-up rate of HK$0.5/kg to be paid by Sino Top; (c) the fees charged by Bel plus the top-up rate would be settled by Sino Top on a monthly basis at the end of each calendar month; (d) the steps involved should be documented according to the Handling Procedures issued by the CAD. There should be a test-run to see whether the tripartite arrangement could operate smoothly. If the volume of shipments was large, further approval from CTSHK would be required. Wilson agreed to Engine’s proposed terms (“the Sino Top Agreement”). 76.Shortly thereafter, Engine received a phone call from Po. Po asked Engine whether Wilson had contacted him to discuss the possibility of Sino Top procuring Bel’s services through CTSHK. Engine told Po the previous conversation between him and Wilson. 77.Over the next few weeks, there were about two to four transactions pursuant to the Sino Top Agreement, which were done as a test run. 78.In December 2018, Engine had a dinner with Wilson and Po at a restaurant in Kowloon Bay, in which Wilson said that Sino Top intended to more regularly procure Bel’s services for shipments to the US via CX flights through CTSHK. Wilson’s suggestion might have an impact on how CTSHK dealt with similar requests from its other customers, since Sino Top might compete with them for finite cargo spaces. Engine thus asked Wilson if he was serious about his suggestion. Wilson replied positively. Engine reminded Wilson and Po that the steps in the transactions pursuant to the Sino Top Agreement had to be properly documented. In that dinner, Po did not say that Bel would charge for its services based on the CX 2019 Annual Quotation. 79.After the dinner, Engine reported to Huang that he had sourced a new substantial customer (ie Sino Top), and the details of the Sino Top Agreement. Huang approved the Sino Top Agreement. 80.Engine denied that he had discussed with Wilson or Po about the Second Mode of Cooperation, whether on 10 December 2018 or otherwise. Also, Engine did not have any authority to agree to such an arrangement on behalf of CTSHK. 81.The Tripartite Group was set up by Po on 8 January 2019 to facilitate communications among Bel, CTSHK and Sino Top concerning the transactions pursuant to the Sino Top Agreement. Some of the steps involved in the transaction flow are not apparent from the exchanges in the Tripartite Group, for Engine would also communicate with Wilson and Po through other means, for example, Whatsapp and phone. 82.In carrying out the Sino Top Agreement from 1 January 2019, Bel did not consistently charge CTSHK for its services according to the CX 2019 Annual Quotation. However, Engine maintained HK$0.5/kg as the additional charge payable by Sino Top in most of the transactions. 83.In late March 2019, since Sino Top had fallen seriously behind on the due settlement of its accounts with CTSHK, on Huang’s instructions, Engine orally notified Wilson over the phone that CTSHK would temporarily suspend and decline all Sino Top’s further orders pursuant to the Sino Top Agreement until further notice. 84.As to the Disputed Invoices in the Counterclaim settled by CTSHK:
85.After suspending further cooperation with Sino Top in late March 2019:
86.Engine said that he did not contact Bel in respect of his receipt of the April/May Emails despite having suspended cooperation with Sino Top, because he did not want to be seen as ‘bad-mouthing’ Sino Top before Bel so as to jeopardise Sino Top’s business. As long as CTSHK did not accept Sino Top’s orders, there would be no deal between Bel and CTSHK under the Sino Top Agreement. 87.Engine was confused by the Disputed Invoices in the Original Claim, which were sent out by Bel in the Tripartite Group on 8 May 2019. At that time, Engine focused on finding out what had happened, and asked Bel to provide the corresponding MAWBs, which were essential for him to ascertain what those invoices were about. E3.2 Huang 88.At all material times, Huang was CTSHK’s Managing Director, and he was Engine’s supervisor. Huang had not personally participated in the discussion or communication with Wilson, Alien or Po leading to the dispute in these proceedings. 89.Huang has mentioned some background information in his evidence:
90.Huang said that in December 2018, Engine reported to him that Wilson and Po had approached him separately by phone to discuss the question of Sino Top through CTSHK procuring Bel’s services through CTSHK. Engine told Huang that according to Wilson, Bel did not agree to deal with Sino Top directly, because Sino Top was a new company without a RA licence. Since (a) the tripartite arrangement would involve Engine assisting Sino Top to procure the air cargo spaces of a third-party RA, which would be regarded as a sensitive matter in the industry, and (b) a foreseeable large volume of cargos from Sino Top, Engine sought Huang’s approval on this arrangement, ie the Sino Top Agreement. When Huang giving the approval, Huang had a clear understanding that under the Sino Top Agreement, CTSHK would retain control over whether it would accept orders from Sino Top. He had never authorised Engine to enter into the Second Mode of Cooperation with any customers, in which CTSHK would have no control as to whether any order from Sino Top should be accepted. 91.From late December 2018 to March 2019, Sino Top regularly placed orders with CTSHK requesting for Bel’s services under the Sino Top Agreement, and CTSHK placed corresponding orders with Bel requesting for such services. During this period, there were over 110 transactions in relation to Sino Top, with a total transaction value of some HK$6.1m. At the same time, Bel and CTSHK continued to have business not relating to Sino Top by providing, requesting and receiving MAWB Assignments and Co-loading Services from each other, and there were 47 orders in this regard, with a total transaction value of HK$1.3m. 92.In effecting the Sino Top Agreement, while more and more transactions were involved, it became difficult for each and every step in every transaction to be properly documented. 93.Between February and May 2019, CTSHK settled the Disputed Invoices in the Counterclaim for the following reasons:
94.By late March 2019, Sino Top had fallen seriously behind on the settlement of its accounts with CTSHK. Therefore, Huang instructed Engine to notify Sino Top that CTSHK would suspend all of Sino Top’s orders placed under the Sino Top Agreement until further notice. At that time, the amount owed by Sino Top to CTSHK reached the credit limit of HK$10 million. Therefore, Sino Top’s trading account with Sino Top was locked. 95.To assist Sino Top to unlock the account, CTSHK agreed to allow Sino Top to place with CTSHK a limited amount of new orders for African shipments on a “cash on delivery” basis. However, as a condition for CTSHK to accept those new orders, Sino Top had to pay CTSHK in cash three times the amount of the fees for the relevant orders. The excess would be used to settle the oldest outstanding debts in Sino Top’s account with CTSHK. 96.In respect of the April/May Emails, in April 2019, Engine reported to Huang that Alien had inadvertently copied to CTSHK some emails concerning direct dealings between Bel and Sino Top. Huang did not think that CTSHK should interfere in the dealings between Bel and Sino Top, hence Huang instructed Engine to ignore those emails. 97.Engine reported to Huang the receipt of 41 of the April/May Invoices on 8 May 2019. Huang instructed Engine to demand Bel and Sino Top to provide the relevant underlying documentation first. Huang came to know that such invoices were all related to Sino Top by 21 May 2019. 98.On 3 June 2019, upon CTSHK’s request, Wilson signed the Guarantee for the debts owed by Sino Top to CTSHK at that time. The Guarantee was updated on 24 June 2019. The Guaranteed Amount did not include any sum in the April/May Invoices. 99.In the 18.06.2019 Meeting, Li said that it would be difficult for Bel to adjust the April/May Invoices by changing the addressee to Sino Top, for this might trigger an enquiry from Bel’s head office in Japan. 100.In the telephone conversation between Li and Huang on 22 July 2019, Huang rejected Li’s suggestion that Brenda had confirmed in the 22.07.2019 Call that the Guaranteed Amount covered the April/May Invoices. Huang also made it clear that CTSHK had not issued corresponding invoices to Sino Top. F. ANALYSIS 101.Both Mr Lam and Mr Chan (together with Mr Wong) have put forward detailed submissions in support of their respective cases. With no disrespect to counsel, I am not prepared to discuss each and every point put forward by counsel in this judgment. In my view, the analysis set out below would be sufficient for disposing the issues in this case. For avoidance of doubt, all the submissions made by counsel have in fact been considered, and the points made by counsel which have not been discussed in this judgment should not be regarded as having been overlooked by this court. F1. Overview on the witnesses’ evidence 102.I do not regard Po and Alien as reliable witnesses. Their evidence in relation to the Oral Agreement is inherently improbable and is not supported by the contemporaneous documents. In my judgment, the Oral Agreement is not true. Po and Alien have given untruthful and unreliable evidence on the Oral Agreement, which is an important issue in this case. By reason of this, the reliability of their evidence as a whole is in doubt. 103.Mr Chan has chosen not to cross-examine Li. Accordingly, the matters deposed in Li’s witness statement and supplemental witness statement should be regarded as undisputed facts. 104.I accept that Engine’s evidence is true and reliable. His evidence is inherently probable and consistent with the contemporaneous documents. I attach full weight to his evidence. 105.I also accept Huang’s evidence. In my view, although Li’s evidence should be regarded as undisputed facts, that would not affect the truthfulness and the reliability of Huang’s evidence in relation to the 18.06.2019 Meeting and the telephone conversation between Li and Huang on 22 July 2019. F2. Oral Agreement 106.In assessing the Oral Agreement put forward by Bel, the following principles have to be borne in mind:
107.Mr Lam submits that in assessing whether the parties have made a binding oral agreement, the subjective intentions of the parties at the material time would also be relevant. He refers me to the following cases:
108.Mr Lam accepts that there is no evidence showing (a) the subjective intention of Po at the time of the formation of the alleged Oral Agreement, and (b) the common subjective intention of Po and Engine at that time. However, Mr Lam submits that there is evidence from Engine showing that he had a subjective intention at the material time, which was consistent with the existence of the Oral Agreement. For the reasons set out in [131] to [134] below, I am unable to accept this submission. F2.1 Unexplained radical change in Bel’s pleaded case 109.As rightly pointed out by Mr Chan, before the filing of the respective witness statements of Po and Alien on 27 January 2021, Bel has never mentioned the existence of the Oral Agreement in their pleadings. By that time, Bel had already filed (a) the Statement of Claim dated 30 August 2019, (b) the Reply and Defence to Counterclaim dated 16 January 2020, (c) Further and Better Particulars of the Statement of Claim (filed on 6 May 2020), and (d) Further and Better Particulars of the Reply and Defence to Counterclaim (filed on 2 June 2020). It had never been raised in these pleadings (all verified by statements of truth signed by Lau) that a binding agreement, ie the Oral Agreement, was reached between Po on behalf Bel and Engine on behalf of CTSHK on or about 10 December 2018. 110.In particular, in [5] of the Statement of Claim, it is pleaded:
111.As submitted by Mr Chan, it is plain and obvious that in the case initially put forward by Bel, the only binding agreement between Bel and CTSHK is the one as pleaded in [5] of the Statement of Claim. Under that agreement, Bel must accept shipment instructions from CTSHK. In other words, Sino Top could not bypass CTSHK and place orders directly with Bel. That agreement is different from the Oral Agreement now alleged by Bel, and in fact contradicts the Oral Agreement now being argued by Bel. 112.No evidence has ever been put forward by Bel to explain this radical change from the initial case pleaded in the Statement of Claim to the case pleaded in the Amended Statement of Claim[23]. Naturally, if the Oral Agreement is true, Bel would put forward the same in its Statement of Claim in the very beginning of this case. In my judgment, the fact that Bel did not do so but put forward an entirely different agreement in the Statement of Claim (which has been confirmed in the Further and Better Particulars of the Statement of Claim as the only contract between Bel and CTSHK), and the unexplained radical change in Bel’s pleaded case in the Amended Statement of Claim, significantly undermines the truthfulness of the Oral Agreement alleged in Alien’s evidence and in Po’s evidence. 113.Mr Chan has invited me to draw an adverse inference against Bel’s case, by reason of the absence of Lau (who signed all the statements of truth verifying all the pleadings filed by Bel) as a witness in this trial. Having considered all the evidence given in the trial, Mr Chan did not ask Bel’s witnesses in the cross-examination as to why Lau did not attend the trial to give evidence for Bel. Since no opportunity has been offered to Bel to explain Lau’s absence in this trial, I decline to draw the adverse inference mentioned by Mr Chan in his submissions. For avoidance of doubt, the conclusion set out in the paragraph above is not the result of drawing any adverse inference against Bel, but is based upon the unexplained radical change of Bel’s case in their pleadings over time. F2.2 Li’s evidence not in support of the Oral Agreement 114.I have considered the matters in the 14.06.2019 Meeting, which are not in dispute. In that meeting, Huang told Li that CTSHK had stopped cooperation with Sino Top on 1 April 2019. Li said that if that was the case, CTSHK should have immediately notified Bel, so that Bel could promptly cease to accept Sino Top’s orders. Huang said that his colleagues did not do well in the matter. I agree with Mr Chan that these matters do not lend support to the existence of the Oral Agreement:
115.In Li’s evidence, Li did not mention the Oral Agreement in all the conversations with Huang, ie in the 14.06.2019 Meeting, in the 18.06.2019 Meeting, and in the telephone conversation with Huang on 22 July 2019. Had the Oral Agreement been true, there is no reason why Li did not mention it at all in all these exchanges, for the Oral Agreement would have provided a solid basis in support of Bel’s claim against CTSHK for all those unpaid invoices. F2.3 Oral Agreement not proved by the evidence adduced by Bel 116.In my view, it is important to bear in mind that the Oral Agreement as pleaded by Bel in the Re-Amended Statement of Claim is an express agreement, with the express terms as pleaded in [4C] of the Re-Amendment Statement of Claim. As pointed out by Mr Chan, by inserting the phrase “inter alia” into [4C], Bel’s averment is that the Oral Agreement does not only contain the terms as set out in subparagraph (a) and subparagraph (b) of [4C], but also contains some other terms. However, as to what are the other others, Bel has never spelt these out in their pleadings, nor there is any evidence showing the other terms of the Oral Agreement. 117.Further, in [4C(b)], it is pleaded that “[Bel] or [CTSHK] may terminate the Operation Arrangement by giving reasonable notice to the other party”. There is no evidence showing that Po and Engine had mentioned this in the telephone conversation between them on or about 10 December 2018. Even assuming that all the evidence adduced by Bel as true and reliable, there is no evidence showing that the Oral Agreement would contain such the term as pleaded in [4C(b)] of the Re-Amended Statement of Claim. 118.Mr Lam submits that [4C(b)] is not an express term of the Oral Agreement, but is a term implied into the agreement by the operation of the law. With respect, I am unable to accept this submission. Undeniably, the term pleaded in [4C(a)] must be an express term of the Oral Agreement. The term in [4C(a)] and the term in [4C(b)] are in the same category. While [4C(a)] is an express term, there is no basis to say that [4C(b)] is an implied term. 119.While there is no evidence proving an express term of the Oral Agreement pleaded in the Re-Amended Statement of Claim, whether Po and Engine have indeed reached an agreement over a telephone conversation on or about 10 December 2018 is in serious doubt. F2.4 Oral Agreement inherently improbable 120.I agree with Mr Chan that the Oral Agreement alleged by Bel is a “blank cheque” given to Bel by CTSHK, by which CTSHK have unconditionally and unreservedly underwritten all liabilities incurred by the services provided by Bel to Sino Top since on or about 10 December 2018. The alleged arrangement is against common and commercial sense and is inherently improbable. 121.In the P/D/Sino Top Arrangement, Sino Top would place an order with CTSHK. If the order is accepted by CTSHK, CTSHK would place a corresponding order with Bel. In the said arrangement, CTSHK would retain a control as to whether a particular order from Sino Top should be accepted. If CTSHK has any reservation (for example, the financial ability of Sino Top at a particular time appears to be not good), CTSHK would have an opportunity to protect their own interest by refusing to accept an order from Sino Top. 122.However, under the Oral Agreement, CTSHK would not have the aforesaid control. Sino Top may place as many orders as they wish with Bel, and CTSHK would have to pay Bel all the corresponding fees charged by Bel unconditionally and unreservedly. It is inherently improbable that CTSHK would enter into an agreement of this kind. 123.While it is true that CTSHK would earn a profit from Sino Top at the rate of HK$0.5/kg for the orders placed by Sino Top, CTSHK may earn the profits by following the P/D/Sino Top Arrangement. It is unreasonable to suggest that by reason of this profit, CTSHK would enter into the Oral Agreement and expose themselves to unlimited liability. One must bear in mind that in 2018, Sino Top was a new company in the industry. Any reasonable businessman having dealings with Sino Top would take precautions to guard against the risk of Sino Top suddenly having some financial difficulties. 124.Further, in January and February 2019, there were occasions in the Tripartite Group in which Po was chasing Engine and Ah Fai for the Undertakings relating to some transactions.[24] In the Tripartite Group, Po said that some officers in Bel regarded the Undertakings as a pre-requisite which must be satisfied before issuing the invoices by bel to CTSHK. Under cross-examination, Alien agreed to this. Alien also accepted that the Undertaking is the only document in which CTSHK may state their stance (表態文件). Alien also accepted that a transaction not supported by an Undertaking may attract regulatory actions from CAD.125.Given the importance of the Undertaking, it is inherently improbable that Bel and CTSHK would enter into the Oral Agreement. Both Bel and CTSHK knew that each and every transaction had to be supported by an Undertaking given by CTSHK. Bel’s internal practice was that in the absence of a relevant Undertaking, no invoice would be issued to CTSHK. The Oral Agreement, if true, would mean that (a) CTSHK would be liable to a transaction proposed by Sino Top and accepted by Bel, without CTSHK stating their consent in any written document; and (b) Bel would be able to issue an invoice to CTSHK for that transaction, even in the absence of any written document showing CTSHK’s consent to the said transaction. These are fundamental changes to the long established practice of both Bel and CTSHK. Applying common and commercial sense, it is inherently improbable that Bel and CTSHK would intend to have such fundamental changes by a causal telephone conversation between two middle-level staff members of their respective companies. 126.In my judgment, the existence of the Oral Agreement is inherently improbable. This has an adverse impact on the reliability of Alien’s evidence and Po’s evidence. F2.5 Oral Agreement not supported by any contemporaneous documents 127.The Oral Agreement as alleged by Bel is also not supported by the contemporaneous documents. 128.There is no written record in support of the existence of the Oral Agreement.
F2.6 Oral Agreement not consistent with undisputed or indisputable facts 129.I am also in agreement with Mr Chan that the alleged Oral Agreement is not consistent with the undisputed or indisputable facts.
130.In view of the contemporaneous documents as set out in the above, in my view, the Oral Agreement pleaded by Bel and alleged by Alien and Po in their evidence is not true. F2.7 Oral Agreement not supported by Engine’s evidence 131.Mr Lam submits that Engine has given evidence in support of the Oral Agreement. Mr Lam is relying upon an answer given by Engine nearly at the end of the cross-examination. Engine said that at one time, he told Po “你搞掂先喇，搞掂然後通知我喇”. 132.In order to clearly and fairly understand Engine’s evidence, I set out the relevant part of the transcript below:
133.As shown in the transcript, Engine in fact has expressly denied the Oral Agreement put forward by Bel. The true meaning of the sentence “你搞掂先喇，搞掂然後通知我喇”, as explained by him in his evidence, is that Po should give him the documents in one go, not to pass the documents to him in bits and pieces at different times. 134.I do not agree that Engine has agreed to, or has accepted, the Oral Agreement alleged by Bel. F2.8 Other matters 135.As to whether the Oral Agreement pleaded by Bel is true, I have also taken the following matters into account. 136.First, as shown in the documents, after 21 May 2019, Sino Top in fact placed 55 direct orders with Bel. At that time, Sino Top remained as a company without a RA licence. This fact is inconsistent with Alien’s evidence and Po’s evidence that the reason for Sino Top having to procure Bel’s services through CTSHK in the first place was Bel’s decision that it could not directly deal with a non-RA. 137.Second, Alien and Po signed their respective witness statements on 12 January 2021, in which they mentioned the alleged Oral Agreement formed on or about 10 December 2018. In the absence of any written record or anything in aid of their memories, it is inherently improbable that they could clearly and accurately remember any discussion concerning the Oral Agreement conducted on or about 10 December 2018. 138.Third, when Po was asked what he told Engine in the telephone conversation on or about 10 December 2018, Po said that all he told Engine was “係咪Wilson 啲貨可以經你俾我地”. And the reply given by Engine was “知道啊, 照住做就得”. Clearly, the question asked by Po is not a question seeking Engine’s confirmation of his agreement to the Oral Agreement pleaded by Bel in the Re-Amended Statement of Claim. For the sake of discussion, assuming that this telephone conversation has taken place, I am of the view that the matter discussed in the telephone conversation is the continuation of the Initial Mode of Cooperation. The subject matter in the telephone conversation is certainly not the Oral Agreement in Bel’s pleaded case. 139.Fourth, Mr Lam has made the following points in his submissions. With respect, I am unable to accept these points.
140.Finally, the settlement of the Disputed Invoices in the Counterclaim is consistent with the existence of the Oral Agreement. However, it is also consistent with the mistake suggested by CTSHK in their case. Having considered all the evidence before me, I accept CTSHK’s case and find that the settlement of the Disputed Invoices in the Counterclaim is indeed caused by the mistake said by CTSHK. The settlement of these invoices cannot prove the existence of the Oral Agreement. F2.9 Oral Agreement not proved 141.For the reasons set out in the above, in my judgment, the Oral Agreement pleaded by Bel is contradicted by the Statement of Claim and the Further and Better Particulars of the Statement of Claim, inherently improbable, not supported by contemporaneous documents and contradicted by undisputed or indisputable facts. The alleged Oral Agreement cannot be true. 142.Alien’s evidence and Po’s evidence in support of the existence of the Oral Agreement are untrue and unreliable. The Oral Agreement is an important issue in this case. Since Alien’s evidence and Po’s evidence on this material issue are untrue and unreliable, save and except the matters accepted by CTSHK or evidenced by documents, I refuse to accept their evidence. 143.At the same time, both Engine and Huang denied the existence of the Oral Agreement in their evidence. For the reasons set out in the above, I find that Engine’s evidence and Huang’s evidence are true and reliable. 144.Since I have ruled against Bel on the Oral Agreement, Bel’s claim based upon the Oral Agreement must fail. F2.10 Engine’s authority 145.For the sake of completeness and without prejudice to the above, assuming that Engine did express his consent to the Oral Agreement in a telephone conversation with Po on or about 10 December 2018, I am of the view that Engine did not have the authority to enter into the Oral Agreement on behalf of CTSHK. 146.According to Bel’s pleaded case, Bel is saying that Engine did have the authority to represent CTSHK to enter into the Oral Agreement. Bel is relying upon actual express authority, actual implied authority, and ostensible or apparent authority.[29] 147.Both Engine and Huang have said in their evidence that Engine did not have the authority to enter into the Oral Agreement on behalf of CTSHK. This part of their evidence is not challenged under cross-examination. Accordingly, it is not in dispute that Engine did not have the express actual authority to enter into the Oral Agreement on behalf of CTSHK. 148.I have found that the Oral Agreement is equivalent to a “blank cheque” given to Bel by CTSHK, by which CTSHK have unconditionally and unreservedly underwritten all liabilities incurred by the services provided by Bel to Sino Top since about 10 December 2018. Engine was an Operations Manager in CTSHK at the material times. Being a staff member at the operational grade, in my view, it cannot be said that the authority of issuing a blank cheque on behalf of CTSHK would be within his ordinary scope of duties, or necessary for or incidental to the execution of his duties. In my judgment, it cannot be said that Engine had the express implied authority to enter into the Oral Agreement on behalf of CTSHK.[30] 149.As to ostensible or apparent authority:
150.In my judgment, all the Bel’s arguments on the authority issue fail. Bel has not pleaded that CTSHK has at any time ratified the Oral Agreement or any transaction pursuant to the Oral Agreement. In the circumstances, even if Engine has expressed an agreement to the Oral Agreement in a telephone conversation with Po on or about 10 December 2018, Bel cannot pursuant to the Oral Agreement to make any claim against CTSHK. F3. Implied Agreement/Estoppel 151.The Implied Agreement and the estoppel pleaded by Bel in their Re-Amended Statement of Claim are pleaded in the Re-Amended Statement of Claim, [5B] and [5C]. 152.In my judgment, the Implied Agreement as pleaded in the Re-Amended Statement of Claim cannot succeed. The entire basis of the Implied Agreement is the settlement of two invoices among the 26 Disputed Invoices in the Counterclaim by CTSHK on 26 February 2019. I have reached the conclusion that the Disputed Invoices in the Counterclaim were paid by CTSHK under the mistake pleaded in CTSHK’s case (see Section F4 below). Accordingly, there is no basis upon which it can be said that there is an implied agreement as alleged by Bel.153.As to the estoppel pleaded by Bel, based upon the evidence accepted by this court, the reliance pleaded in the [5C(c)] of the Re-Amended Statement of Claim is not proved. Accordingly, the alleged estoppel is not established. F4. Mistake 154.As to the mistake pleaded by CTSHK, I accept Engine’s evidence as set out in [84] above, and Huang’s evidence as set out in [93] above. I am satisfied that when CTSHK made payments for the Disputed Invoices in the Counterclaim, CTSHK was under the mistakenly belief that they did request Bel to provide the services in those invoices to Sino Top. 155.CTSHK is relying upon unjust enrichment as the cause of action in support of their counterclaim. The elements of unjust enrichment are as follows[33]:
156.CTSHK did make payments to Bel under the Disputed Invoices in the Counterclaim. Elements (1) and (2) are there. In my judgment, the payments were made under the mistake as pleaded in CTSHK’s case. In the circumstances, it would be unjust for Bel to keep the money paid by Bel. Element (3) is also present. 157.Bel has put forward change of position and estoppel as defences. In my view, since there is no evidence in support of the reliance pleaded by Bel (see [153] above), these defences to the counterclaim cannot succeed. 158.In my judgment, CTSHK succeeds in establishing the counterclaim. Bel ought to return the payments received under the Disputed Invoices in the Counterclaim to CTSHK. F5. Answers to the Agreed Issues 159.By reason of the aforesaid, the answered to the agreed issues are as follows:
F6. Conclusion 160.Based upon the analysis as set out in the above, Bel’s claim should be dismissed, and CTSHK’s counterclaim ought to be allowed. G. DISPOSITION 161.I dismiss Bel’s claim and allow CTSHK’s counterclaim. 162.There be an order that Bel do return the sums paid by CTSHK to Bel under the Disputed Invoices in the Counterclaim forthwith, the total of which has been agreed at HK$1,235,479.26. The parties have also agreed that in the event that the counterclaim be allowed, there be pre-judgment interest at the HSBC prime lending rate plus 1% on the said sum from 23 August 2019 until the date of this judgment, and thereafter at judgment rate until payment. I make an order on interest in accordance with this agreement.163.Mr Lam and Mr Chan have agreed that costs should follow the event. Since CTSHK succeeds in defending Bel’s claim and making out the counterclaim, costs of these proceedings should be to CTSHK. Mr Chan does not seek a certificate for two counsel. Accordingly, subject to the matter mentioned below, I order that costs of these proceedings (including all costs reserved) be paid by Bel to CTSHK, to be taxed if not agreed. 164.Before leaving this judgment, I have to mention one matter. After finishing hearing the evidence on 15 September 2023, I directed that the parties should prepare written final submissions, and I also directed that oral final submissions would be heard on 8 November 2023 at 10 am. On 8 November 2023 at 10 am, all counsel and CTSHK’s solicitors were present in the court, but no one from the law firm representing Bel in this case was present in the hearing. Mr Lam told me that he had tried to contact the handling solicitor, Mr Kam Fai (“Mr Kam”), but was unable to get in touch with him. I therefore adjourned the hearing and gave some time to Mr Lam to try to contact Mr Kam again. Eventually, the law firm representing Bel managed to send a solicitor (not Mr Kam) to the court at around 11 am. Because of all these, an hour was wasted and the hearing on 8 November 2023 actually started at around 11 am. 165.At the end of the hearing on 8 November 2023, I directed that Mr Kam shall file and serve an affirmation personally made by him within 14 days to explain his absence in the hearing on 8 November 2023. I also said that I might consider whether it would be necessary to make a wasted costs order against the solicitor. 166.On 10 November 2023, Mr Kam filed an affirmation made by him (“the Affirmation”) pursuant to my direction. In the Affirmation, Mr Kam said that he started to feel unwell in the late evening of 7 November 2023. He suffered from a headache and running nose. He took some medicine before going to bed at around 11 pm. Before going to bed, he set an alarm to make sure that he would get up in time in the morning on 8 November 2023. However, due to some unknown reason, the alarm did not function the next morning. Mr Kam woke up at around 10:15 am. He immediately called his firm to make some arrangements. Eventually, he arrived at the court at around 11:50 am. He has been practicing as a solicitor for 13 years. Before this incident, he has never missed a hearing, and he has never been late in attending a hearing. This event is an isolated event. He undertakes that he would never make any similar mistake again in the future. 167.Having considered the Affirmation, I accept that Mr Kam’s failure to attend the hearing on 8 November 2023 on time is not his intentional act. However, I regret to say that Mr Kam has not managed the situation satisfactorily. On 7 November 2023, when Mr Kam started to feel unwell, he should let his colleagues know as soon as possible, so that the law firm could make necessary arrangements before the hearing on 8 November 2023 to send another solicitor to attend the hearing. Having considered the matter in the round, save and except the following, I am not prepared to take any further action against Mr Kam. 168.It is an undeniable fact that one hour (which is not insignificant) was wasted in the morning on 8 November 2023 due to the mistake made by Mr Kam. At the moment, I am of the view that the costs wasted by the one-hour adjournment (ie from 10 am to 11 am) on 8 November 2023 should be personally borne by Mr Kam on an indemnity basis. I direct that Mr Kam do file and serve an affirmation within 7 days, in which he shall state:
169.For avoidance of doubt, the fact that Mr Kam did not attend the hearing on 8 November 2023 on time has no impact on my assessment of the merits of the parties’ respective cases, and has not affected the outcome of this case in any way. 170.Lastly, it remains for me to thank all counsel for the assistance rendered to the court.
Mr Justin Lam, instructed by Boase, Cohen & Collins, for the Plaintiff Mr Isaac Chan and Mr Adrian TY Wong, instructed by Tso Au Yim & Yeung, for the Defendant [1] The Disputed Invoices in the Counterclaim are items 5 to 28 (ie total 26 invoices) in the table under [5A] of the Re-Amended Statement of Claim. As to items 1-4 and 31-34 in that table, it is agreed that those items are no longer disputed invoices, for the transactions therein have been approved by CTSHK. [2] The earliest date on which two of the Disputed Invoices in the Counterclaim were settled by CTSHK. [3] Disputed Invoices in the Original Claim are set out in [9] of the Re-Amended Statement of Claim. [4] As defined in [3(b)] of the Amended Defence and Counterclaim [5] Re-Amended Defence and Counterclaim, [12(b)] [6] Amended Reply and Defence to Counterclaim, [25D(a)] [7] Amended Reply and Defence to Counterclaim, [25D(b)] [8] Unless otherwise indicated, the abbreviations used in the pleadings are adopted. [9] The parties cannot agree on the wording of issue no.4. Having considered the parties’ respective proposals, I adopt the wording proposed by Bel. [10] HCA 1734/2009, 8 April 2014 [11] [2009] 5 HKLRD 513 [12] [2004] 1 HKC 434, 443E-444C [13] [2012] 5 HKLRD 524 [14] Wilson’s nickname [15] Engine’s nickname [16] Trial Bundle H, page 1963 [17] Huang’s witness statement, [24] [18] (1997-98) 1 HKCFAR 343, 354D-E [19] (2006) 9 HKCFAR 735 [21] [1999] 1 WLR 2042, 2050H-2051A [23] In the Amended Statement of Claim, Bel raised the Oral Agreement for the first time. However, as to when the Oral Agreement was formed, this has not been mentioned in the Amended Statement of Claim. Only after the commencement of the trial, Bel further amended the Amended Statement of Claim and introduced the plea that the Oral Agreement was formed on or about 10 December 2018 in the Re-Amended Statement of Claim. [24] They called the “Undertakings” as “還單信” in the Tripartite Group. [25] Invoice Nos. 657718, 657719 [26] See Bel’s Statement of Account to CTSHK dated 31 January 2019 [27] Wilson’s nickname [28] Engine’s nickname [29] Amended Reply and Defence to Counterclaim, [10F] [30] Bowstead & Reynolds on Agency (22nd Edition), §§3-028 and 3-031 [31] [2004] EWHC 1379 (Ch) [32] [2004] UKHL 28, [2004] 1 WLR 1846 [33] Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd (2004) 7 HKCFAR 79, [67] | ||||||||||||||||||||||||||
Cases cited in this judgment