Yang Yani v. Fang Mingyun and Another

HCA 1439/2019

[2024] HKCFI 2223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1439 OF 2019

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J U D G M E N T

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A.  INTRODUCTION

1.This action arose out of an aborted property transaction. The Plaintiff (“Ms Yang”) signed a Tender Document in respect of a property. She gave a sum of HK$300,000 to D1 (“Ms Fang”) as “earnest money”, thinking that there would be a refund if the tender fell through. Ms Fang gave that money together with a cheque issued by D2 (“Ever Rich”) for another HK$3,950,600 (“the Cheque”), to the Vendor’s agent. Ms Yang decided that she did not want the Property. The Vendor accepted the tender but the Cheque was dishonoured. The Vendor forfeited the HK$300,000 and demanded for payment of HK$3,950,600. Ms Yang paid it.

2.Ms Yang claims that the Defendants had falsely represented to her that the HK$300,000 could be returned if the tender fell through. They had acted in breach of their duty of care in ensuring that she understood the tender process and released the Cheque to the Vendor without her authorization. She seeks damages of HK$4,250,600.

3.There was no written agency agreement between the parties and no promise of Ms Yang to pay agency fees. According to the further and better particulars that she gave, Ms Yang’s understanding was that the Defendants would seek payment of commission from the Vendor or Centaline (its agent). The Tender Document did not state that any of the Defendants was Ms Yang’s agent. There was a Cooperation Agreement between Ever Rich and Centaline, but Ms Yang was not privy to it. Ms Yang’s case is wholly premised on the principle known as “assumption of responsibility in tort”.

4.The Defendants had been represented until their solicitors applied for leave to cease to act, which was granted on the first day of trial. However, their counsel (Ms Manalie Chan) had lodged an opening submission for the Defendants. Ms Fang never confirmed her adoption of Ms Chan’s opening submission but, in the interest of justice, I shall consider that submission as it does contain points of substance.

5.In gist, the Defendants contest the existence of an agency relationship, or that they owed or breached any duties to Ms Yang, or that they made false representations, and assert that the Cheque was issued on Ms Yang’s instructions.

B.  UNDISPUTED OR INDISPUTABLE FACTS

6.Both Ms Yang and Ms Fang were from Mainland China. Both could speak Putonghua. Ms Yang was and is a business person. She obtained her Hong Kong resident card in January 2015, with the intention of relocating to Hong Kong. She had no experience with the purchase of a property in Hong Kong. Ms Fang has been a licensed estate agent in Hong Kong since 2005, hence have had about 14 years’ experience at the time of the subject tender. She ran her estate agency business through Ever Rich, of which she was the sole shareholder and director.

7.In May 2018, Ms Fang acted as agent for Ms Yang in renting premises in Lai Chi Kok. For that matter, Ever Rich received a commission of $11,000 from Ms Yang.

8.In or around April 2019, Ms Yang informed Ms Fang of her intention to purchase a property in Hong Kong, and asked for Ms Fang’s assistance. Ms Fang arranged visits to 7 properties, including the subject property at 21-22/F of Babington Hill, No. 23 Babington Path, Hong Kong (“the Property”).

9.In about mid-April 2019, Ms Yang made the First Visit to the Property, accompanied by Ms Fang.

10.During the Second Visit on 28 April 2019, Ms Yang expressed her interests in the Property. Ms Yang was then accompanied by one Mr Yu Chuen Ming (“Mr Yu”). Together with Ms Fang were agents from Centaline, whose identity Ms Yang did not know.

11.A Centaline agent, Mr Ng Yip Hung (“Mr Ng”), purported to explain the Tender Document to Ms Yang in a small room on site (“the Small Room”), during which Ms Fang remained outside.

12.Ms Yang signed the Tender Document offering to purchase the Property at a price of HK$85,012,000. She transferred a sum of HK$300,000 to Ms Fang on the same day.

13.Ms Yang had to leave Hong Kong on the same night. As she had omitted to sign 2 pages of the Tender Document, Centaline agents went to the restricted area of the airport to have her sign them.

14.The initial deposit was 5% of the purchase price. On 29 April 2019, Ms Fang released the HK$300,000 and the Cheque for the balance of the deposit (“Remaining Balance”) to Centaline. The Cheque was drawn on the account of Ever Rich.

15.On 3 May 2019, the Vendor issued a letter of acceptance and requested Ms Yang to sign the formal sale and purchase agreement within 5 working days. However, the Cheque was dishonoured as Ms Fang had stopped it.

16.On 14 May 2019, the Vendor forfeited 5% deposit and demanded payment of the Remaining Balance from Ms Yang.

17.Accepting her contractual liability under the Tender Document, and to avoid legal proceedings against her, Ms Yang paid the Remaining Balance to the Vendor, without prejudice to her right to commence proceedings against third parties.

18.The Tender Document contained the following clauses in both English and Chinese versions:

(1)  Clause 2.4 of the Tender Notice stated that it was the Vendor instead of the purchaser who reserved the right, at any time before acceptance of a tender, to withdraw the Property from sale.

(2)  Clause 2.10(a) stated that every tender shall be irrevocable and shall constitute a formal offer capable of and remain open for acceptance by the Vendor during the Acceptance Period. After the tender has been submitted in accordance with the procedures set out in the Tender Notice, no Tenderer shall be at liberty to withdraw his tender and the same shall be deemed to remain open for acceptance by the Vendor until the end of the Acceptance Period.” See also Clause 1 in Part 3.

(3)  Clause 2.7(b)(i) stated that a tender must be:

“(b) accompanied with the following documents:

(i) Cashier order(s) and/or cheque(s)

In respect of each Tendered Property, one or more cashier order(s) issued by a bank… and/or cheque(s) in total amount equal to 5% of the Purchase Price (of which a minimum amount of HK$300,000 shall be paid by cashier order(s)) and made payable to “MAYER BROWN”.”

(4) Clause 2.8 of the Tender Notice stated that:

“All cashier order(s) and/or cheque(s) forwarded by the Tenderer will be retained and uncashed until the Vendor has made its decision on the tenders submitted. If a tender is accepted, the cashier order(s) and/or cheque(s) submitted therewith will be treated as the preliminary deposit towards and applied in part payment of the Purchase Price. All other cashier orders and/or cheque(s) will be returned… within a period of fourteen (14) days from the expiry of the Acceptance Period to the unsuccessful Tenderers…”

(5) The purchaser was warned to instruct her own solicitor who would be able, at every stage of the purchase, to give the purchaser independent advice: Clause 15 and Clauses (a) to (e) in the Annex to the Offer Form (“the Warnings”).

19.It transpired that Ever Rich and Centaline had entered into a Cooperation Agreement dated 29 April 2019 with the effective date being the same day as the Second Visit, ie, 28 April 2019. Under that Agreement, Ever Rich would receive a commission of HK$850,120. This document was not disclosed to Ms Yang prior to this action.

20.Ms Yang instituted this action against the Defendants on 8 August 2019.

C.  PLAINTIFF’S CASE

21.Ms Yang claims that the Defendants were her agents in the tender. By the end of the trial, Mr Ho and Mr Yu, counsel for Ms Yang, confirm that Ms Yang only pursues 2 claims against the Defendants:

(1)  She claims that the Defendants had made false Representations in breach of their duties to act with reasonable care and due care and skill in making representations, to ensure that the Plaintiff understood the relevant procedures and not to mislead Ms Yang;

(2)  The Defendants released the Cheque to the Vendor without Ms Yang’s authorisation.

22.The alleged representations (collectively “the Representations”) were as follows:

(1)  If Ms Yang intended to purchase the Property, she would have to sign and submit the Tender Document to the Vendor;

(2)  Ms Yang would have to pay the HK$300,000 earnest money;

(3)  In case the deal was not concluded (不成交), Ms Yang was at liberty to unconditionally obtain a refund of the HK$300,000; and

(4)  Even if the Tender Document was signed and submitted, Ms Yang was entitled at any time to refuse to proceed with the transaction without any legal responsibility, at which time the HK$300,000 would be unconditionally refunded to her.

23.During the Second Visit, although she indicated to Ms Fang about her interests in the Property and asked about the purchase procedures, Ms Yang had told Ms Fang that she had not come to a final decision.

24.In the Small Room, Centaline agents explained the Tender Document to Ms Yang in Cantonese, but she did not understand, as she spoke Putonghua. She sought and relied on Ms Fang to clarify the purchase procedures to her, in the course of which Ms Fang made the Representations to Ms Yang.

25.Relying on the Representations, Ms Yang signed the Tender Document and transferred the HK$300,000 to Ms Fang, in the belief that it was “earnest money” which could be refunded and would facilitate the purchase if but only if Ms Yang ultimately decided to proceed with the purchase.

26.Ms Yang no longer pursues the claim against the Defendants as her fiduciaries who failed to act in her best interests.

D.  RESPONDENT’S CASE

27.The Defendants deny the agency and Ms Fang claims to be only an errand person (跑腿). They claim that Ms Yang had engaged Centaline, which was the exclusive agency, to purchase the Property. In fact, the Tender Document clearly stated that the estate agent was Mr Ng instead of the Defendants and that the Vendor had its own agent.

28.During the 2^nd Visit, Ms Yang was accompanied by her male friend whom she had consulted from time to time. Ms Fang had no authority to explain the Tender Document. It was the Centaline agents who had explained the tender procedure to Ms Yang, whereas Ms Fang was neither involved in the checking of the Tender Document, nor was she the one running to the airport to let Ms Yang sign on the two pages. Ms Yang was under the advice of the Centaline agents. She was aware that the tender was irrevocable and that the HK$300,000 was part of the purchase price and not earnest money.

29.The Defendants deny that there were duties owed to Ms Yang, that any duty was breached, that the Representations were made or (if made) that Ms Yang’s had relied on the same.

30.The Tender Document was in both Chinese and English. There were clauses to show that the tender was irrevocable and that HK$300,000 was part of the 5% deposit.

31.The Defendants also deny that the Cheque was issued without Ms Yang’s authorisation.

E.  ISSUES

32.The opening submission of counsel on both sides raised the following 5 agreed issues:

(1)  Whether the Defendants acted as Ms Yang’s agent and/or assumed responsibility to Ms Yang in respect of the sale and purchase of the Property (“Agency Issue”);

(2)  Whether the Defendants had acted in breach of their duties by making the Representations (“Duties Issue”);

(3)  Whether Ms Yang relied on the false Representations (“Reliance Issue”);

(4)  Whether the Defendants had, in breach of their duties, issued the Cheque to the Vendor without Ms Yang’s authorisation (“Authorisation Issue”); and

(5)  What the loss of Ms Yang was (“Damages Issue”).

F.  WITNESSES

33.The principles on assessment of credibility are well established: Hui Cheung Fai & Anor v Daiwa Development Ltd & Ors [2014] HKCU 890, at §§77-83, Eugene Fung SC. The Court considers the inherent probabilities and logicality in a party’s case and whether a party’s case is contradicted in a material way by other undisputed or indisputable evidence and whether a witness has been discredited over one or more matters to which they have given evidence using the above tests.

34.Memory may be fallible, if the relevant events have happened a long time ago, the Court will place more weight on contemporaneous documents: Chan Pak Hung v Keung Lai Nor Winnie [2022] HKCFI 1264, at §§43-45, Au-Yeung J. It would be relevant to have regard to factors like shortcomings in a party’s disclosure and evidence: Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923, at §§53-62, Coleman J.

35.Only Ms Yang gave evidence on behalf of herself. Although repetitive at times, Ms Yang was a straightforward and truthful witness who was not shaken in evidence. She did not shy away from the fact that she was contractually bound to fulfil the contractual requirement to pay the Vendor and promptly met her obligation. She admitted that she had studied English but had no overseas experience in that language. Her case was supported by contemporaneous WeChat Messages between her and Ms Fang. She gave consistent and logical answers under cross-examination. Her evidence was credible and reliable and I accept the same.

36.Ms Yang’s witness (Mr Yu) was not available due to the fact that the trial would take place shortly after the Chinese New Year and Mr Yu (himself being aged) would like to spend time visiting his aged mother in the Mainland. I accept the explanation, which was not challenged by the Defendants. His witness statement was excluded from the evidence.

37.Ms Fang gave evidence on behalf of the Defendants. In sharp contrast to Ms Yang, Ms Fang was evasive and I treat her evidence with caution. She would not confirm whether she would accept the opening submission of Ms Chan. It took her several answers to say that it was her 2^nd witness statement that should prevail over the 1^st.

38.Her 1^st witness statement §§7-8 stated that during both Visits, Ms Fang and Centaline agents had explained to Ms Yang the purchase price and mode of payment. Her supplemental witness statement §§20, 33 and 34 stated that in the Small Room, Centaline agents including Mr Ng explained the Tender Document and procedures. From beginning to end she had not and could not possibly explain to Ms Yang the documents that she signed. When cross-examined on the potential inconsistencies, Ms Fang repeatedly changed her answer as to which version was accurate. She was simply evasive and was unable to offer a direct answer as to what was said or not said by her to Ms Yang.

39.Ms Fang denied having possession of the Tender Document under cross-examination but the WeChat Messages clearly recorded scanned copies of the Tender Document which she forwarded to Ms Yang for reference. She had never done a tender before and I doubt if she had ever read the Tender Document to find out what Ms Yang had committed herself to. She was particularly evasive on the Authorization Issue, digressing into allegations never referred to in her witness statement, eg that Ms Yang did not pay rent and went about asking people for money to pay the Remaining Balance.

40.Towards the end of cross-examination of Ms Yang, the Court has tried to help Ms Fang frame questions for putting to Ms Yang. One question was whether Ms Fang had explained “開標” (open the tender) to Ms Yang. Ms Fang kept saying that Ms Yang had signed the Tender Documents but Ms Fang’s stance was wholly unclear. Another question was how Ms Fang came up with the date of 3 May 2019 but, again, her position was not clear. In the end, those questions could not be put to Ms Yang. Ms Fang kept digressing when later cross-examined on these issues.

41.At the 2^nd pre-trial review, Ms Fang used herculean efforts to convince the Court that her previous firm of solicitors (Lim & Lok), which was suspended from practice, had not followed her instructions to properly file witness statements. See the Decision in [2023] HKCFI 3357, §§16 and 17. In the end, the Court gave her leave to file, amongst others, witness statements of Mr Ng and Mr Alex Wong (“Mr Wong”), both of Centaline, which Ms Fang claimed “went to the heart of the defence” (at §11).

42.Mr Alex Wong (present during the Second Visit) gave straightforward answers under cross-examination, and was full and frank. His evidence was particularly helpful on the meaning of “exclusive agency”. He had no personal knowledge of what Mr Ng explained to Ms Yang in the Small Room as he was outside. I accept Mr Wong’s evidence.

43.Mr Ng would have been the only witness who could have given direct evidence on behalf of the Defendants as to what he had explained to Ms Yang in the Small Room. However, he did not sign his draft witness statement and did not appear at the trial. Ms Fang did not give any explanation at all save that, under cross-examination, she said that Mr Ng’s witness statement could not be filed in time. She never asked for extension of time, despite the fact that she was legally represented at the time.

44.Mr Ho submits that the inevitable adverse inference was that had Mr Ng been called, his evidence would have supported Ms Yang’s case and undermined the Defendants’. I have reservation as to this, which I shall explain under the Reliance Issue in §§93-94.

45.One matter about terminology used by witnesses is worthy of mention. It transpired from the WeChat Messages that Ms Yang and Ms Fang used Chinese terms in a way quite different from ordinary usage.

(1)  Take for example: “[Ms Yang] Yes, must inform me before you could open the tender. If I do not notify you, how would you open the tender? On whose behalf would you open?” (“对啊，肯定得我通知你才能开标”; “我不通知你，你怎么会开标呢，你替谁开啊”). It prompted this Court to seek clarification and discovered that “開標”, to Ms Yang, meant she was the one to tell her agent to deliver the tender and Ms Yang was the one to “open” the tender, when the ordinary usage was “the Vendor opening the tenders to decide whether to accept any of them”.

(2)  “行程”, to Ms Fang, meant “schedule for meeting solicitors to sign documents and arrange the mortgage”, when the ordinary usage was “itinerary for a trip”.

46.I bear §45 in mind, although how a WeChat message objectively meant to a recipient must be viewed objectively.

47.Ms Fang’s closing submission was made orally and was not very helpful. She could not understand why Ms Yang sued the Defendants instead of Centaline.

G.  ISSUE 1: AGENCY ISSUE

G1.  Applicable legal principles on Issue 1

48.Even in the absence of a contract, a duty of care arises where: (1) party A relies on party B to provide information, advice or services in circumstances where it is reasonable to rely on party B; and (2) party B takes it upon himself to provide such information, advice or services, when he knows or ought to have known that party A is relying on him. In these circumstances, party B is said to have assumed responsibility to exercise care towards party A. It is not necessary to show that party B has knowingly or deliberately assumed such responsibility. The test for the existence of such a duty is an objective one: whether it can reasonably be said that he has by his conduct accepted responsibility: Yiu Chown Leung & Others v Chow Wai Lam & Another, (2005) 8 HKCFAR 592, §7.

49.The Court may consider factors like:

(1)  Whether the service was gratuitous or given in a social as opposed to a professional context: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, at 178H and 179B-E, HL.

(2)  Whether the relevant service was given on an informal occasion or was negatived by an appropriate disclaimer: Precis (521) PLC v William M Mercer Limited [2005] EWCA Civ 114, §19, CA, citing from Henderson v Merrett;

(3)  The presence or absence of other advisers on whom the advisee would or could rely; the factor is analogous to the likelihood of intermediate examination in product liability cases: Precis v William, §24.

G2.  Acts done by the Defendants showing agency

50.Express conferral of authority on Ms Fang as agent is no longer relied on in Mr Ho’s closing submission.

51.It is indisputable that the Defendants had performed extensive tasks for Ms Yang without ever disclaiming any responsibility. For instance, Ms Fang (i) prepared a payment program (“付款流程”); (ii) recommended at least 7 properties to Ms Yang; (iii) attended multiple inspection of properties with her, including the First and Second Visits. All of these happened well before the Cooperation Agreement was signed.

52.After Ms Yang signed the Tender Document, Ms Fang (i) made appointments with conveyancing solicitors, with a fee quote for Ms Yang; (ii) advised Ms Yang on stamp duties, mortgage options and the methods of purchase; (iii) scanned the Tender Document for Ms Yang’s reference; and (iv) when asked by Ms Yang as to the use of a corporate vehicle or personal capacity for the purchase, Ms Fang took time to tidy up her answer first before replying.

53.These were things that an estate agent would commonly do for purchasers in Hong Kong. These facts plainly showed that Ms Fang’s role, with her 14-year experience special skill as an agent, was beyond that of a “mere errand person”, but was an estate agent acting on behalf of Ms Yang. In fact, there was no hint at all in the WeChat messages that Ms Fang was only running errands.

54.Ms Chan argues that there was no agency for lack of either an estate agency agreement or any agreement that would have entitled the Defendants to any commission from Ms Yang.

55.I do not accept this. The lack of an agency agreement was irrelevant to the cause of “assumption of responsibility in tort”. In arranging the tenancy in Lai Chi Kok, there was no written agency agreement between Ms Yang and the Defendants either. The Defendants performed work as an agent. The debit note of Ever Rich to Ms Yang stated that the fees paid to Ever Rich were for “agent fee”. There was no denial by Ms Fang that the Defendants were Ms Yang’s agent.

56.The Defendants also argue that when Ms Yang was signing the Tender Document, the single most important part of the transaction, Ms Fang was excluded from the Small Room. Instead, some agents of Centaline (described as 另外一些人員 in Ms Fang’s 3^rd witness statement) were present in the Small Room. If the parties had intended the Defendants to be the agent of Ms Yang, they would have made room for Ms Fang in the Small Room, instead of excluding her. Moreover, in the Tender Document, Mr Ng instead of Ms Fang was named as the estate agent. Furthermore, Ms Fang was not the one checking the Tender Document for Ms Yang or bringing the Tender Document to the airport for Ms Yang to sign on the 2 unsigned pages. The Tender Document was in the possession of Centaline agents. The Defendants could not have been the ones releasing the Tender Document. All of these demonstrated the parties’ intention that the Defendants were not Ms Yang’s agent.

57.I do not accept such submission. It was Mr Alex Wong’s evidence that Centaline acted for the developer and not the purchaser. An agent’s duties included documentation and practical affairs. With regard to the former, Ms Yang was Centaline’s client. As sole agent Centaline explained the tender to her, checking the documents and having her sign. The exclusive agency agreement did not prevent Ms Yang from having her own agent. She did have Ms Fang, who handled the practical affairs. Ms Fang, however, contradicted Mr Alex Wong in saying that Centaline was both an agent on documentation and practical affairs, though Centaline did not even have contact details of Ms Fang.

58.Ms Chan also submits that Ms Fang gave Ms Yang general information about purchasing a property in Hong Kong, but not the exact procedure in the Tender Document. I do not agree. The WeChat Messages about HK$300,000, whether Ms Yang wanted the Property, the 開標、截標were all directed at the Property and not any other property.

59.The acts done by the Defendants were overwhelming in showing that the Defendants were acting as Ms Yang’s estate agent.

G3.  Cooperation Agreement between Centaline & Ever Rich

60.The Cooperation Agreement contained the following terms:

Clause 2:“…*中原/合作代理只代表業主，而中原/合作代理則只代表*買方/租客 YANG YANI，除非得到另一方書面同意，否則雙方不可私自聯絡非其代表之客戶。”

Clause 3:“如業主與買方…於有效期內訂立具約束力的協議，雙方代理協訂以下述方式分配有關物業交易佣金: … 合作代理佔有關物業交易全數佣金的1%，即港幣$850,120.00。”

61.I accept Mr Ho’s interpretation that although the parties did not cross out one item of 中原/合作代理, it was plain from the structure of Clause 2 that Ever Rich only acted as Ms Yang’s exclusive agent and Centaline only as the Vendor’s.

G4.  Dual agency

62.Ms Chan contends that Centaline might have acted for both the Vendor and Ms Yang. In fact, Mr Ng was stated to be the agent on the Tender Document, whereas the Vendor had another agent, Sun Hung Kai Estate (Sales and Leasing) Agency Ltd. Ms Fang would have dropped out of the picture, once the Tender Document were signed.

63.I am unable to agree with Ms Chan.

(1)  Despite different work undertaken by Centaline and Ms Yang as stated in §57 above, Ms Fang had still acted in the role of Ms Yang’s agent.

(2)  Centaline regarded itself as agent for the Vendor/developer only: Clause 2 of the Cooperation Agreement and Mr Alex Wong’s evidence.

(3)  Plainly, the Cooperation Agreement anticipated there being agents acting for the purchaser hence the need for that agent and Centaline to cooperate.

(4)  If the Defendants were not Ms Yang’s agent, there would have been no reason for them to sign the Cooperation Agreement, as only Ms Yang’s agent would be entitled to the commission, as stated in Clause 3.

(5)  If Ms Fang truly believed that she was not an agent after the Tender Document were signed, then she should not have signed the Cooperation Agreement the day after the Tender Document was signed.

64.Mr Ho correctly points out that Ms Yang was not privy to the Cooperation Agreement, and she only realised the existence of the same in or around October 2020, after the commencement of the present action. For this reason, Ms Yang could not have relied on the Cooperation Agreement to show her intention to have the Defendants as her agents. Rather, the probative value of the Cooperation Agreement was to show Ms Fang’s own admission that she was Ms Yang’s estate agent and Centaline also objectively regarded her so.

65.It was confirmed by Ms Fang in cross-examination that she would receive commission in the event of a successful transaction. The commission was huge. Ms Fang therefore had an interest at stake and could not be considered a gratuitous agent acting purely out of good will.

66.To Ms Fang’s knowledge, Ms Yang was a busy person and had never bought a property in Hong Kong. Ms Yang expressly told Ms Fang her wish to buy a property. Ms Yang must have relied on Ms Fang to provide information, advice or services as an estate agent.

67.Ms Fang herself, under cross-examination, admitted that she fought for the opportunity to act as Ms Yang’s agent after knowing Ms Yang’s intention to purchase a property in Hong Kong. She knew and ought to have known that the information, advice or services to be provided to Ms Yang would have an impact on the latter’s decision to purchase.

G5.  Disclaimer of responsibility

68.Ms Chan argues that the Tender Document contained the Warnings, which amounted to the Defendants’ disclaimers of responsibility. I am unable to agree. The Warnings were given by the Vendor to Ms Yang and the Defendants were not privy to the Tender Document.

69.Ms Fang latter never disclaimed responsibility as an estate agent or indicated to Ms Yang that her role was only an errand person.

G6.  Findings on the Agency Issue

70.All circumstances under Section G considered, and applying Yiu Chown Leung, I find that the Defendants must be taken to have assumed responsibilities towards Ms Yang and acted as her agent in the Property transaction such that a duty of care arose.

H.  ISSUE 2: DUTIES ISSUE

H1.  Applicable legal principles on duties owed by an estate agent

71.In determining the scope of duty of an estate agent, the Court could refer to the Code of Ethics (“Code”) issued by the Estate Agents Authority: Midland Realty (Comm. & Ind.) Limited v NCF (HK) Limited HCA 1830/2013, §§75-76, DHCJ Cooney SC.

72.Mr Ho relies on the following paragraphs in the Code:

(1)  §3.2.2 - estate agents “should strive to provide services and opinions based on knowledge, training, qualifications and experience in the real estate business.

(2)  §3.3 - “Estate agents … shall, in the course of business, provide services to clients with honesty, fidelity and integrity. They should protect their clients against … misrepresentation … in connection with real estate transactions”.

(3)  §3.5 - “Estate agents … shall, in fulfilling their duties, exercise due care and due diligence”.

(4)  §3.6.2 - “Estate agents … shall, in the event of possible or potential conflict of interests … disclose to their clients that they are so acting. Any pecuniary or other beneficial interests in relation to the property shall be disclosed fully to all parties concerned”.

73.Given the issues now before the Court, it is strictly not necessary to consider these provisions in the Code as tort law is sufficient. I do not think that §3.6.2 was relevant. Although Ms Fang was keen to earn her commission, there was no conflict of interests for Ms Fang to sign the Cooperation Agreement or act as Ms Yang’s agent.

74.It has been held that the degree of skill and care expected of estate agents in Hong Kong would not extend to legal matters on which estate agents received no training: Chiu Wai Ling v Chan Yau Chi & Anor (Centaline Agency, Third Party) [2002] 2 HKC 154, §30, HH Judge Lok.

75.The Defendants were obliged to comply with Ms Yang’s instructions. As stated in Murdoch, The Law of Estate Agency, 5^th ed:

“It is an agent’s fundamental obligation to comply with all the client’s express instructions. Thus, an estate agent … who disregards a specific prohibition imposed by the client, or who fails to honour an explicit undertaking given to the client, will be liable for any loss which is thereby caused” (at page 49).

“Less commonly, an estate agent may be able to bind a client to a contract of sale, perhaps by virtue of the doctrine of apparent authority; once again, assuming that the agent had no actual authority to conclude the deal, he or she will be liable to the client for breach of duty” (at page 50).

H2.  Did Ms Fang make the Representations?

76.The Defendants deny making the Representations to Ms Yang but this was contradicted by the WeChat Messages.

77.Firstly, the contemporaneous WeChat messages were overwhelming in showing that Ms Fang had made the Representations or did not correct Ms Yang’s misunderstandings of the tender:

(1)  29.04.2019 “I can also mail a cheque for the 3950600 under the circumstances that it would be refunded if the transaction does not go through” (“我也可以寄出3950600支票，如果成交不了会退给我的清况下”).

(2)  02.05.2019 “It was already said before that if the transaction falls through, the fees would be refunded, what problems could there be” (“…之前就说过如果成交不了费用都会原路退回这还能有什么问题吗”).

(3)  02.05.2019 “You take responsibility, I asked you all along that if the transaction fell through, the fees would be refunded, I have previously all along said that there was this possibility. if I want, can go on 6^th earliest.” (“你来负责，我一直问你不成交，费用都会退会来的，之前我一直说有这个可能，如果要，最早６号去”)

(4)  02.05.2019 “I have all along asked you whether it could be refunded if the transaction fell through and you answered in the affirmative” (“…我一直问你不成交的情况能否退回你说是的”).

(5)  02.05.2019 “Just at the beginning I already asked whether it would be refunded if the transaction fell through” “how could you not appreciate this yourself” (“刚开始我就问了成交不了会退回的”“难道你自己还不清楚”).

(6)  02.05.2019 “You said right at the beginning that if I did not want the Property, it could be refunded, otherwise, how dare I would make the transfer to you so quickly” (“你一开始就说不要可以退，否则我敢那么快转你?”).

(7)  03.05.2019 “Are you a professional, I already asked you in Tai Koo, and you said if the transaction fell through, it would be refunded to me, as to how you would interact after that, that had nothing to do with me” (“请问你是专业人士吗，在太古我就问你，你说成交不了可以退我的，至于之后你们如何交流的，与我无关了”).

(8)  03.05.2019 “How could you be so rash, client has not decided yet you decided first” (“你怎么可能这么冲动，客人没有决定你先做决定”).

(9)  29.04.2019 “Everyone knew that I haven’t decided yet, Xiao Han also knew clearly that you said the deposit could be refunded, Chief Yu junior knew that as well” (“所有人都知道我没决定要，小涵也清清楚楚知道你说可以退回订金，小余总也知道…”).

78.These WeChat message plainly disclosed that Ms Yang had still not made up her mind as to the purchase. Her concern was whether or not if she decided not to go ahead, the HK$300,000 could be unconditionally refunded to her. In §77(1), she even thought that the Remaining Balance could be refunded.

79.Secondly, despite Ms Yang’s repeated assertions set out in §77 above, Ms Fang neither corrected Ms Yang as to the conditions for refund nor asserted that Ms Yang had falsely accused her. To the contrary, Ms Fang made repeated admissions and offered to compensate Ms Yang:

(1)  02.05.2019 “You said right at the beginning that if I did not want, it could be refunded, otherwise, how dare I would make the transfer to you so quickly” (“你一开始就说不要可以退，否则我敢那么快转你?”), Ms Fang replied, “your 300,000, I repay you.” (“你的30万 我还给你”).

(2)  02.05.2019 Ms Fang said “the Tender Document could not be retrieved. I have asked today. I would use my best effort to take responsibility” (“标书 要不回来了 我今天问了 我尽最大的努力来承担责任 …”).

(3)  02.05.2019 Ms Fang apologised to Ms Yang that everything was “her fault” and asked for Ms Yang’s forgiveness (“… 杨总，千错万错都是我的错 希望你原谅一次 我会用一辈子来感激你. 不能因为我的迟钝 耽误了你房子的成交 我以后一定会努力改进. 不要让你失望. 我知道你日理万机的忙碌 今天开会还要接电话 实在对不起 我是不善言辞的人 真心请你原谅我一次…”).

(4)  03.05.2019 Ms Fang told Ms Yang that the matter had become “complicated” and she had “prepared for the worst”, although “it would take time to raise a few million dollars” (“事情已经非常复杂了 我已经做了最坏的打算 只是几百万 我需要时间去筹备”).

(5)  03.05.2019 Ms Fang told Ms Yang “I was wrong. I should have waited for your arrival before allowing them to release the Tender Document.” (“是我错了 应该等你来了 才让他们放标书”).

(6)  03.05.2019 Ms Fang expressed her willingness to be punished by Ms Yang and asked for forgiveness (“我真的希望这一切是昨晚的一场梦 不是真的 .我摸摸自己 很难面对现实.杨总, 看你很喜欢这个房子 我们才努力的 律师楼都约好了 .如果在沟通上哪里错了 希望你原谅一次 投资升值了 再卖出去…杨总 ，我愿意接受你惩罚. 再次给你道歉 . 祈求你原谅我们一次. 所有的欠缺 . 好吗?”).

80.Ms Fang pleaded that Ms Yang had been sending messages of strong wordings to her and so the former sent messages to try and calm the latter down; the apologies made no direct references to any of the Representations. That plea needs only to be stated to be rejected. Calming someone down did not require an offer to pay her several million dollars.

81.Ms Fang also testified that one Ms Chan Oi Wah had asked her to apologize to Ms Fang. Such evidence can be rejected because:

(1)  Ms Fang had already considered herself liable by stating “你的30万 我还给你” at around 17:06 on 2 May 2019 before Ms Chan Oi Wah allegedly asked her to apologize at around 22:52.

(2)  If Ms Fang did not consider herself as being at fault, she did not need to adopt Ms Chan Oi Wah’s suggestion.

82.In the light of the analyses in Section H2 above, I find that Ms Fang had made the Representations to Ms Yang.

H3.  Were the Representations false?

83.Save for the 1^st limb in §22 above, I find the rest of the Representations to be false in that once the tender was made, it was irrevocable. The HK$300,000 was part of the initial deposit and not just earnest money. The HK$300,000 was only refundable if the deal was not concluded at the Vendor’s choice (ie if the tender was not accepted).

84.Ms Chan contends that the 3^rd and 4^th limbs of the Representations may be referring to Clause 2.8 of the Tender Notice. I am unable to agree. Ms Chan’s submission is not supported by a pleaded case or even relied on in Ms Fang’s witness statements. In fact, Ms Fang testified under cross-examination that “不成交” meant that “Ms Yang did not want the Property”. That would not be a Clause 2.8 situation.

H4.  Did Ms Fang breach the duty of care owed to Ms Yang?

85.Ms Fang breached her duty of care under the Yiu Chown Leung principles in making False Representations. If considered necessary, she failed to protect Ms Yang from misrepresentation by making false Representations herself, thereby contravening §3.3 of the Code. She also failed to verify the accuracy of the Representations before making the same to Ms Yang, contravening §3.5 of the Code.

86.Ms Chan submits that the Defendants’ scope of duty was confined to giving general information on property transaction in Hong Kong, but assumed no responsibility towards Ms Yang to advise on the tender procedure of the Property, as that fell outside the Defendants’ knowledge, training, qualifications and experience.

87.I do not agree, because the tender procedure was fully set out in the Tender Document. If Ms Fang had studied the Tender Document, she would have known that Ms Yang held mistaken notions. In contrast to Chiu Wai Ling, no legal advice, as opposed to straight forward translation, was necessary to understand the condition of refund. And yet Ms Fang could not offer a direct answer as to whether she had explained the property price and payment method during any of the 2 Visits (§38 above).

I.  ISSUE 3: RELIANCE ISSUE

I1.  Applicable legal principles on reliance

88.Reliance has to be proved to establish that the assumption of personal responsibility had causative effect. The test is not simply reliance in fact, but whether the plaintiff could reasonably rely on an assumption of personal responsibility by the individual who performed the services: Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830, at 836-837.

I2.  Was Ms Yang’s reliance on the Representations reasonable?

89.I have found in §§66-67 above that, to Ms Fang’s knowledge, Ms Yang did rely on her as an estate agent.

90.As a busy business person, Ms Yang said that she did not have time to go through the niceties of the Tender Document and, despite her business experience, she did not understand the technical legal terms. She spoke only Putonghua, and could not understand what the Centaline agents said in Cantonese about the tender procedures. That was why she had to rely on Ms Fang in understanding the relevant procedure. I have no doubt that Ms Yang had actually relied on Ms Fang. But it was one thing to rely on Ms Fang as an estate agent; it was another to rely on the Representations.

91.Ms Yang testified that she spent about 30-60 minutes inside the Small Room with people who were strangers to her, listening to their purported explanation to her of a set of documents of about 40 pages. She did not understand what they said but fixated on the Representations. There was no evidence that she had ever tried to verify with those strangers the correctness of the Representations. She knew she was signing a tender document and did so unreservedly. The strangers kept the original version according to Mr Alex Wong.

92.As pointed out by Ms Chan, the Tender Document was in Chinese which Ms Yang could read. The tender was stated to be irrevocable, for more than once. (See §18(2) above.) The Tender Document also contained the Warning more than once, eg Clauses 14-15 of Part 2 and B96 (right under the handwritten name of Ms Yang and her ID Card No). It was completely incomprehensible why an experienced business person like Ms Yang had acted in the way she did.

93.The absence of Mr Ng and Mr Yu as witnesses operated against both parties. There was no evidence as to what was explained by Mr Ng in the Small Room. There was no evidence as to whether or not Mr Yu had asked Mr Ng to clarify the nature of the HK$300,000.

94.The Property was worth over HK$80 million. Centaline was the Vendor’s exclusive agent. It was Mr Alex Wong’s evidence that Centaline agents had to follow a strict guideline in explaining the Tender Document to tenderers. I am unable to see why Mr Ng would not have dutifully explained the Tender Documents to Ms Yang. I decline to draw adverse inference against the Defendants due to the absence of Mr Ng.

95.Based on the analyses in Section I2, I find that Ms Yang did rely on the Representations but her reliance was not reasonable. Causation of loss of the HK$300,000 was not proved.

J.  ISSUE 4: AUTHORISATION ISSUE

96.Ms Fang’s oral testimony confirmed that she had sent the HK$300,000 and the Cheque to Centaline on 29 April 2019. She knew that the 2 sum had to be sent together (一齊做).

97.There is no dispute that Ms Yang never gave Ms Fang money beyond the HK$300,000. Where did Ms Fang get the money for the Remaining Balance and why did she use D2’s cheque and date it 28 April when Ms Yang had already indicated that she could write a cheque if the Remaining Balance could be refunded?

98.Ms Fang simply could not point to any single WeChat message to show that Ms Yang had authorized her to prepare or deliver the Cheque to Centaline at all. The defence was completely silent on the circumstances leading to the issue of the Cheque and did not even allege that there were oral instructions from Ms Yang. It was only in her oral evidence that Ms Fang said Ms Yang allowed her to issue the Cheque (“佢比我開”); and would repay Ms Fang when she came back. These were plainly recent inventions.

99.Ms Chan submits that the messages on 28 and 29 April 2019 showed Ms Yang’s intention to purchase the Property.

(1)  On 28.4.2019, Ms Yang sent the message “就周一吗？明天永龙上班，我就按他的那个指指导把那个支票填，然后呢，你这个。到时候还退给我，我我就给你开一个30的开给你，然后再开一个，300多开给需要开的那个，那个那个需要开的对方。”

(2)  On 29.4.2019, Ms Yang sent the message”我也可以打两个，一个30一个3950600... ...”

She submits that Ms Yang only mentioned a change of mind for the first time on 30 April 2019 – that she was still considering other options.

100.I am unable to accept this for the following reasons.

101.Firstly, in her answer to the request for further and better particulars of the source of authorization, Ms Fang referred to 2 images of the Cheque forwarded to Ms Yang, not the WeChat message on 28 and 29 April 2019. As Ms Fang admitted under cross-examination, she had already sent out the Cheque before she sent those images to Ms Yang.

102.Secondly, the Remaining Balance was missing to make the tender complete under Clause 2.7(b)(i). Ms Yang had to leave Hong Kong that evening. At 1729 hours on 28 April, she was still telling Ms Fang that she would mail a cheque for the Remaining Balance on the following day (Monday). And yet the Cheque was dated 28 April, plainly without Ms Yang’s authority.

103.Thirdly, as shown in the following WeChat exchanges Ms Yang repeated to Ms Fang numerous times that she was still considering whether to proceed with the purchase whilst the Remaining Balance was outstanding:

(1)  30.04.2019 “Because I am still allowing my classmate to help me look at other properties in Mid-levels, because he is very professional, and then because tomorrow is holiday, 1 May holiday, so he would have more time …” (“因为我也还在让我同学。帮我多看一下那个半山的别的楼盘，因为他很专业吗，然后他因为嗯，刚好是明天，是五一放假，所以他会有比较多的时间…”).

(2)  02.05.2019 “Not only an issue of concession, but have to make an overall consideration, because there are in fact inherent flaws, the road downstairs is too narrow, you shouldn’t rush because this is a big transaction, need to carefully consider from multiple aspects.” “Not only an issue of $10,000 or other concessions or not” (“不仅仅是优惠的问题，是还在综合考虑，因为的确有硬伤，楼下路太窄，你别着急这是大事情，需要多方面慎重考虑”“不仅仅是10000块或别的优惠与否”).

(3)  02.05.2019 “Aren’t you at work today tomorrow? I can decide today whether I want it” (“你们不是今天明天都上班吗我可以今天决定是否要吧”) To which Ms Yang answered in the affirmative.

(4)  02.05.2019 “My team is still helping me evaluate the inherent flaws of this Property and the current properties in Mid-levels, I don’t have time today to communicate with them, would do so later, I would then reply you afterwards. Previously said that all expenses would be refunded if the transaction fell through. What further problems could there be?” (“…因为我的团队在帮我调研这个楼盘的硬伤以及目前半山楼盘，今天我还没时间和他们沟通，一会儿会沟通，之后我会回复你的，之前就说过如果成交不了费用都会原路退回这还能有什么问题吗”).

(5)  02.05.2019 “Yes, must inform me before you could open the tender. If I do not notify you, how would you open the tender? On whose behalf would you open?” (“对啊，肯定得我通知你才能开标”; “我不通知你，你怎么会开标呢，你替谁开啊”).

(6)  02.05.2019 “You take responsibility, I asked you all along that if the transaction fell through, the fees would be refunded, I have previously all along said that there was this possibility, if I wanted” (“你来负责，我一直问你不成交，费用都会退会来的，之前我一直说有这个可能，如果要…”).

(7)  02.05.2019 “The condition precedent was if I want … you were really something, I said if I wanted …” (“前提是如果要” “你真行，我说的是如果要”).

(8)  02.05.2019 “If I decide to have it, it is not too late to open next week” “Can’t rush in such a big transaction…” (“如果决定要，下周再开也不迟” “这种大事急不得”).

(9)  02.05.2019 “I still haven’t made my final decision to have it, how can you determine” (“我都没最后决定要你怎么能定”).

(10)  02.05.2019 “I am amazed by you, I haven’t decided, how can you allow the other side to open the tender, on 30^th I already told you I was carefully considering, friend(s) were helping to view” (“真服你了我没决定你怎么能让对方开标”; “30号我就告诉你我在慎重思考朋友帮忙去看”).

(11)  02.05.2019 “Only my decision is permissible, it is a big thing” (“我决定才可以的，这是大事情”).

(12)  02.05.2019 “I haven’t decided yet that I don’t want the Property, it is just that the tender must not be opened tomorrow…” (“我还没决定不要这个房，只是不可以明天开标…”).

(13)  02.05.2019 “How can you let them open the tender without first letting me decide, you even asked me to explain to the intermediary” (“怎么就不让我决定就通知我开标，还要让我跟中介解释”).

(14)  02.05.2019 “If I want it I would tell you the time for follow up,, if I decide finally that I don’t want it, you ask intermediary to pay you back and you in turn pay me back” (“如果我要会通知后续时间，如果最后我决定不要，你就让中介退给你然后你再原路转给我”).

(15)  02.05.2019 “I don’t have time, I still haven’t decided whether I want the Property, I am still in meeting” (“没有时间，我还没决定要不要这房子我还在开会”).

(16)  03.05.2019 “Have I ever issued a cheque, aside from the HK$300,000 deposit which you proclaimed repeatedly could be refunded, have I ever asked you to issue another cheque? This is absurd. You should now think about how you would handle this. How dare you to annoy me” (“… 请问我有开过支票吗，除了口口声声可以退回的30万订金之外我有让你开过别的支票吗？简直太荒唐，你现在应该好好想想自己怎么应对，还敢来烦我”).

104.A fair reading of the chain of WeChat messages showed that Ms Yang was not aware that a tender had been submitted on her behalf and its effect. She was the one to tell her agent to deliver the tender and Ms Yang was the one to “open” the tender. She had a wrong notion of “tender” (see §45 above) and Mr Fang never corrected her.

105.Fourthly, even after she had signed the Tender Documents, Ms Yang was still asking Ms Fang about whether she should use her personal capacity or a corporate vehicle to do the purchase. On 29 April, she still thought that the Remaining Balance could be unconditionally refunded.

106.Taking these circumstances together, whether Ms Yang had reasonably relied on the Defendants’ special skill, and even having signed the Tender Documents, it was not open to Ms Fang (as an agent or just an errand person) to issue the Cheque without Ms Yang’s authority. The objective reading of the WeChat messages could not have given Ms Fang an impression that Ms Yang had authorized the issue of the Cheque.

107.Ms Chan submits that it was inherently improbable that Ms Fang would have issued the Cheque on behalf of Ms Yang without her authorisation, which would be at risk of being forfeited if Ms Yang decided to call off the transaction, for a potential gain of commission in the sum of some $800,000. With respect, the Court should not consider such inherent improbabilities when Ms Fang could have given direct evidence as to the facts leading to the issue of the Cheque.

108.I find that Defendants issued the Cheque without Ms Yang’s authorisation.

K.  ISSUE 5: DAMAGES ISSUE

109.On the bases of the findings under the 4 Issues above, I am satisfied that breach of duty and lack of authorization have been proved on balance of probabilities. Ms Yang’s loss can be divided into 2 limbs: (i) the HK$300,000; and (ii) the HK$3,950,600.

110.As causation was not proved as regards the HK$300,000, Ms Yang cannot recover this loss from the Defendants.

111.If the Remaining Balance had not been paid, the tender would have been invalid as Clause 2.7(b)(i) was not satisfied. The unauthorized issue of the Cheque had caused direct loss to Ms Yang. The Defendants should pay damages of HK$3,950,600 to Ms Yang.

112.In the course of deliberation of this judgment, I have raised requisition by a letter dated 9 August 2024 on whether or not only Ever Rich should be held liable even though Ms Fang was its sole director and shareholder. Only Ms Yang has responded with further submissions. I am satisfied from reading it that both Defendants should be held liable. The reasons are as follows.

113.As a matter of legal principle, a director may be held personally liable. In Williams v Natural Life Health Foods Ltd, 835H-836E, HL, it was held that:

“In the present case a triangular position is under consideration: the prospective franchisees, the franchisor company, and the director. In such a case where the personal liability of the director is in question the internal arrangements between a director and his company cannot be the foundation of a director’s personal liability in tort. The inquiry must be whether the director, or anybody on his behalf, conveyed directly or indirectly to the prospective franchisees that the director assumed personal responsibility towards the prospective franchisees. An example of such a case being established is Fairline Shipping Corporation v Adamson [1975] Q.B. 180. The plaintiffs sued the defendant, a director of a warehousing company, for the negligent storage of perishable goods. The contract was between the plaintiff and the company. But Kerr J. held that the director was personally liable. That conclusion was possible because the director wrote to the customer, and rendered an invoice, creating the clear impression that he was personally answerable for the services. If he had chosen to write on company notepaper, and rendered an invoice on behalf of the company, the necessary factual foundation for finding an assumption of risk would have been absent. A case on the other side of the line is Trevor Ivory Ltd v Anderson [1992] 2 N.Z.L.R. 517. This case concerned negligent advice given by a one-man company to a commercial fruit grower. Despite proper application of the spray it killed the grower’s fruit crop. The company was found liable in contract and tort. The question was whether the beneficial owner and director of the company was personally liable. The plaintiff had undoubtedly relied on the expertise of the director in contracting with the company. The New Zealand Court of Appeal unanimously concluded that the defendant was not personally liable. McGechan J., who analysed the evidence in detail, said, at p.532, that there was merely “routine involvement” by a director for and through his company. He said that there “was no singular feature which would justify belief that Mr. Ivory was accepting a personal commitment, as opposed to the known company obligation.” That was the basis of the decision of the Court of Appeal. In his 1997 Hamlyn Lecture on “Turning Points of the Common Law,” Lord Cooke of Thorndon commented that if the plaintiff in Trevor Ivory Ltd. v. Anderson” had reasonably thought that it was dealing with an individual, the result might have been different.” See “A Real Thing, Taking Salomon Further,” p.18, note 50. Such a finding would have required evidence of statements or conduct crossing the line which conveyed to the plaintiff that the defendant was assuming personal liability…” (emphases added)

114.Firstly, as a matter of pleading, the Defendants have never pleaded that only Ever Rich should be held liable, even though they had been legally represented until the filing of the opening submission and agreed to a list of issues with Mr Ho.

115.Secondly, raising the issue now would cause prejudice to Ms Yang as she would be deprived of the chance to cross-examine Ms Fang to establish statements or conduct of Ms Fang that “crossed the line”, thereby conveying to Ms Yang that Ms Fang was assuming personal liability; or to ask her to explain why she had admitted in the Re-Amended Defence that certain things done in the name of Ever Rich (eg issuing of the Cheque and the receipt for commission of the rented property) were done by both Defendants.

116.Thirdly, in any case, there was ample evidence to show that, Ms Fang knew or ought to have known that she was assuming personal liability:

(1)  The name card given to Ms Yang stated both the licence number of Ever Rich and herself.

(2)  The Re-Amended Defence admitted that the Defendants issued the Cheque.

(3)  She provided her personal account for Ms Yang to transfer RMB HK$257,800,394 (the equivalent of HK$300,000) to her.

(4)  In her witness statement, Ms Fang said that Ms Yang requested Ms Fang to assist in the dealing（原告人要求本人協助她處理）without Ms Fang raising objection.

(5)  Ms Fang personally offered to repay the HK$300,000. When she could not retrieve the tender, she promised to use her best endeavours to take responsibility. She needed time to raise several million dollars.

117.I am thus satisfied that both Defendants ought to be held liable to Ms Yang.

L.  CONCLUSION AND COSTS

118.Based on the aforesaid, the Defendants did assume responsibility and/or acted as Ms Yang’s agent as regards the Property transaction. Ms Fang breached her duties as agent and made false Representations but it was unreasonable for Ms Yang to rely on all but the 1^st limb. She should bear her own loss as to the HK$300,000. However, the Cheque was issued without Ms Yang’s authorisation. The Defendants breached their duties owed to Ms Yang as agents. Accordingly, there should be judgment to Ms Yang such that the Defendants do pay her HK$3,950,600.

119.On a nisi basis, interests shall be at P+1% per annum on the judgment sum from 8 August 2019 (date of the writ) to the date of judgment and thereafter at judgment rate until full payment.

120.On costs, the case is not complicated. Although I appreciate the good work of Mr Justin Ho and Mr Ian Yu, this case does not justify 2 counsel. Ms Yang has won on all but the Reliance Issue and hence the claim for HK$300,000. However, it was these unsuccessful issues that have caused significant increase in the costs of this action, compared to the Court having to try just the distinct Authorization Issue. See Harbour Front Ltd v the Official Receiver and Trustee of the Property of Leung Yat Tung [2024] HKCFI 1900, §5, Au-Yeung J. The Defendants should bear costs of the Authorization Issue whereas Ms Yang should bear costs of the rest. Doing a notional set off and on a nisi basis, I order each party to bear her/their own costs.

121.I thank Mr Ho and Mr Yu for their assistance. Without compromising Ms Yang’s best interests, they have provided assistance to Ms Fang and had been fair in the cross-examination of her.

122.I also thank Ms Manalie Chan who has tried to advance the best points on behalf of Ms Fang in her opening submission.

Mr. Justin Ho and Mr. Ian Yu, instructed by W.K. To & Co., for the Plaintiff

Ms. Manalie Chan, instructed by Yick & Chan, for the Defendants up to the lodging of the written opening submission on 9 February 2024; the Defendants were thereafter not represented at the trial