Nobleseed Partners Ltd v. Zhang Qian Qian

HCA 706/2020

[2025] HKCFI 753

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 706 OF 2020

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BETWEEN

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JUDGMENT

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A. BACKGROUND

1.This dispute arises out of a service agreement made between Nobleseed Financial Group Limited (“NFG”) and Ms Zhang Qian Qian i.e. the Defendant herein (“Zhang”) on 4 November 2019 (“Service Agreement”).

2.NFG, now known as Yuan Tong Global Financial Group Limited, is a Hong Kong company with subsidiaries holding licenses for providing securities services and asset management services. One of NFG’s directors was Mr Kwok Wai Tak (“Kwok”), who is also the sole director of Nobleseed Partners Limited (“Plaintiff”).

3.In around October 2019, according to Kwok’s evidence, he was introduced to Zhang through one of Kwok’s acquaintances, Mr Thomas Shie (“Shie”), and he was given to understand that Zhang was Shie’s girlfriend. As stated by Kwok in his evidence, he gathered from Shie that Zhang was experienced in liaising with relevant professional parties to provide public relations (“PR”) services for Kwok’s business. However, Zhang in her evidence admits she “had little experience … with public relations matters” but she had several contacts, particularly in Mainland China, who might be able to assist in this respect.

4.According to the Service Agreement, Zhang agreed to assist NFG in seeking professional parties to provide PR services. The Service Agreement is a short document which provides:

“[Zhang] will assist NFG on a best-effort basis in seeking of professional parties to provide the following public relations service to the related projects of NFG (referred below as the “Service”) The period for performance of this Agreement shall commence on the date of signing this Agreement for a ten-months terms.

1. Address media, and public perception issues through the strategic professional and formulation of appropriate core messages to reinforce preferred corporate profile and positioning

2. Raise its profile to the level that it is regularly and favorable covered by the media

3. Raise the profile of its senior management, including initiatives to establish a leadership profile for relevant industrial branding;

4. Provide substantive media monitoring on trends and development related to the related projects on regular basis so as to identity angles and media opportunities; and

5. As the media office to all media queries both locally and internationally.

NFG shall pay a total service fee of HK$4,000,000 or equivalent to approx. 2,800,000 shares within one month from the date of this Agreement.”

5.As alleged by Kwok, one of the “related projects” referred to in the Service Agreement would involve “enhancing the public profile” of Shinelong Automative Lightweight Application Limited (“Shinelong”) listed on the Hong Kong Stock Exchange. In fact, on 26 November 2019, NFG duly transferred 2,800,000 shares in Shinelong (“Shares”) valued at HK$1.43 each and worth HK$4,004,000 in total to Zhang as the service fee stipulated under the Service Agreement.

6.NFG’s case is that Zhang failed to provide any service as required under the Service Agreement. By letter from its solicitors dated 4 February 2020 (“Demand Letter”), NFG (i) purported to accept Zhang’s repudiation of the Service Agreement (ii) demanded the return of the Shares or the payment of HK$4,004,000 within 14 days from the date of the Demand Letter.

7.By letter from her solicitors dated 26 February 2020, Zhang responded that she had duly performed the Service Agreement (albeit without any further particulars) and that she should not be liable to NFG as claimed or at all. It is common ground that Zhang has never returned either the Shares or the sum of HK$4,004,000 to NFG.

8.By a deed of assignment dated 30 March 2020, the chose in action of NFG was assigned to the Plaintiff. On 23 April 2020, the Plaintiff through its solicitors gave Zhang notice of the assignment.

B. PARTIES’ RESPECTIVE CASES

9.The parties’ pleaded cases are straightforward, and the issues in dispute are confined.

10.The Plaintiff’s case runs as follows:

(1) Zhang was in repudiatory breach of the Service Agreement because she failed to carry out any of her obligations to assist NFG in seeking professional parties to provide PR services. As a result, the Plaintiff claims HK$4,004,000 in loss.

(2) Further and/or alternatively, Zhang is unjustly enriched at the expense of NFG for total failure of consideration and is liable to make restitution in the sum of HK$4,004,000 or the equivalent value of the Shares to NFG.

11.In response, Zhang’s pleaded case is that:

(1) She was not in breach of the Service Agreement because NFG had never instructed or requested Zhang to seek any professional parties to provide public relations services to NFG pursuant to the Service Agreement. Absent such instruction or request, there was no obligation on the part of Zhang to perform.

(2) The Plaintiff is not entitled to any restitution where the enrichment received by Zhang was received pursuant to a contract between the parties.

C. EVIDENCE

12.I have heard the evidence from Kwok and his secretary, Ms Yan Siu Fung (“Yan”), both of whom testified on the Plaintiff’s behalf. Zhang is the only witness for her case.

C1. Kwok

13.As the Plaintiff’s sole director, Kwok spoke to the circumstances surrounding the entry into the Service Agreement and Zhang’s performance. His account is that:

(1) In around July 2019, Kwok became acquainted with Shie, with whom Kwok was eager to explore business opportunities given Shie’s credentials, financial capability, and social connections.

(2) In around October 2019, NFG required PR service for its projects, including a project to enhance the public profile of Shinelong. Shie recommended his girlfriend, Zhang, as someone experienced in liaising with the relevant professional parties to provide PR services. Kwok agreed as he would like to strengthen his business ties with Shie in any event.

(3) After the Service Agreement was entered into, Zhang never proposed any names of the relevant professional parties and could not be reached when Kwok tried to follow up with her in around early February 2020.

14.Mr So,[1] counsel for Zhang, characterises Kwok as a dishonest and evasive witness who gave inconsistent accounts of his role in the Service Agreement. For instance, Mr So highlights the different versions propounded by Kwok: (1) he said in his witness statement that he had attempted to contact Shie about Zhang’s performance; (2) he said under cross-examination that it was the “company’s team” (namely, Yan) who would remain in close contact with Zhang; (3) later, he said that there should have been a specifically designated “director” for this purpose because Yan was busy. Further, it is contended on behalf of Zhang that Kwok’s explanations as to why he did not ask for personal particulars from Zhang and also why he did not contact her despite his knowledge of her residential address (as stated in the Service Agreement) are not acceptable. Kwok’s evidence will be further addressed below.

C2. Yan

15.Yan’s evidence is brief. In essence, Yan testified that:

(1) She was not the person responsible for liaising with Zhang about NFG’s business matters, including the Service Agreement. The only time she met Zhang was in around late October 2019, when she was accompanying Kwok to meet Shie at Shie’s office on a social occasion.

(2) It is untrue that Zhang received no work requests from NFG regarding the Service Agreement. Instead, Kwok had numerous follow-up meetings with Shie regarding the performance of the Service Agreement. As she was required to handle Kwok’s diary, she confirmed that according to the records of her WeChat conversations with Shie, Kwok and Shie had met or contacted each other on various occasions from December 2019 to January 2020.

16.Under cross-examination, Yan reiterated that it was Kwok who liaised with Zhang or Shie. In response to the Court’s questions, Yan added that she discussed with Kwok about the scope of work under the Service Agreement; and as far as she could recall, she did not provide Zhang with any information in relation to the Service Agreement and the steps required for performance of the same.

17.I find Yan to be an honest witness who endeavoured to assist the Court and answered questions in a forthright manner. In particular, while Kwok during cross-examination tried to suggest that Yan was in direct contact (in answer to the question on who actually followed up the matter with Yan) with Zhang, Yan made no attempt to tailor her evidence to suit Kwok’s evidence and, as mentioned above, she maintained it was Kwok who tried to contact Zhang or Shie.

C3. Zhang

18.The key aspects of Zhang’s evidence can be summarised as follows:

(1) Prior to entering into the Service Agreement, she discussed with Yan about certain projects NFG was then engaged in. They then agreed that it would only be upon NFG’s request to be linked up with a PR professional to provide services in relation to a particular project that she would have to try to locate for NFG.

(2) However, throughout the 10 months following the execution of the Service Agreement, she received no work requests from NFG. Instead, during her meeting with several executives from NFG, she was told that NFG was facing internal issues which prevented it from exploring new projects. No one from NFG had ever complained about the fact that no work was done by her.

(3) Under cross-examination, Zhang also said that at the time of signing the Service Agreement, she knew that the PR services envisaged under the Service Agreement relate to Shinelong. She knew that Shinelong was a listed company, although she had not been given instructions as to the precise projects she was expected to assist with.

(4) She also denied that Kwok and Yan were unable to contact her and that they did not have her contact details.

19.Mr Wong for the Plaintiff has attacked the quality of Zhang’s evidence on various fronts. In particular, Mr Wong criticises Zhang for signing statements of truth when she was not proficient in English and only understood the gist of her pleadings and witness statements. While it may be the case that Zhang’s previous solicitors did not handle the statements of truth with the necessary care and attention, I do not consider this to have a material bearing on her credibility. I find that she generally intended to assist the Court and tried her best to answer questions raised in cross-examination. That said, there are new factual matters she raised under cross-examination which had not been canvassed in her witness statements. I shall return to this aspect below.

D. ANALYSIS ON THE ISSUE OF BREACH OF CONTRACT

20.The key question for the Court’s determination is whether Zhang has repudiated or renounced the Service Agreement such that the Plaintiff became entitled to elect to accept the repudiation or renunciation. Alternatively, there is an issue of unjust enrichment.

D1. Parties’ contentions

21.The Plaintiff submits that Zhang failed to perform any part of her obligation to assist NFG on a best-effort basis in seeking professional parties to provide PR service:

(1) The parties’ intention was clear in that the Service Agreement took effect immediately for Zhang to seek professional parties to enhance the image of inter alia Shinelong. Nowhere in the Service Agreement provided that NFG was required to make any request or demand to Zhang. Instead, Zhang did not perform anything. She was out of reach.

(2) Zhang was also unfamiliar with the business of Shinelong. She accepted at trial that she had done nothing throughout the material period as she was awaiting work requests.

22.In response, Mr So submits that NFG elected to terminate the Service Agreement prematurely:

(1) First, the Service Agreement does not state any stages or milestone events stating what should be done at each juncture.

(2) Second, the Plaintiff did not adduce any evidence as to the commercial standard which a PR advisor is expected to meet within three months.

(3) Third, there was no evidence as to what NFG did to ascertain with Zhang her intention relating to the performance of the Service Agreement.

(4) Fourth, even assuming Zhang chose to do nothing in the first three months, the Plaintiff is still required to prove Zhang would not have been able to discharge the Service Agreement during the remainder of the term.

D2. Analysis

D2(1). Legal principles

23.The principles governing the construction of best endeavour clauses were set out by DHCJ Bernard Man SC in The Pui Ying Middle School of Hong Kong v So Shing Yit Eric [2021] HKCFI 692 §102 (citing KS Energy Services Ltd v BR Energy (M) Sdn Bhd [2014] SGCA 16 at §93):

(1) Such clauses require the obligor “to go on using endeavours until the point is reached when all reasonable endeavours have been exhausted”; or “to do all that it reasonably could”.

(2) The obligor need only do that which has a significant or real prospect of success in procuring the contractually-stipulated outcome.

(3) If there is an insuperable obstacle to procuring the contractually-stipulated outcome, the obligor is not required to do anything more to overcome other problems which also stood in the way of procuring that outcome but which might have been resolved.

(4) The obligor is not always required to sacrifice its own commercial interests in satisfaction of its obligations, but it may be required to do so where the nature and terms of the contract indicate that it is in the parties’ contemplation that the obligor should make such sacrifice.

(5) An obligor cannot just sit back and say that it could not reasonably have done more to procure the contractually stipulated outcome in cases where, if it had asked the obligee, it might have discovered that there were other steps which could reasonably have been taken.

(6) Once the obligee points to certain steps which the obligor could have taken to procure the contractually stipulated outcome, the burden ordinarily shifts to the obligor to show that it took those steps, or that those steps were not reasonably required, or that those steps would have been bound to fail.

24.The principles on renunciation are likewise well-established:

(1) An innocent party is entitled to accept an anticipatory breach of a defaulting party prior to the conclusion of a contract. The defaulting party’s “act” could be termed as “renunciation”, which could be communicated by words, conduct, or a party’s inaction: The Nanfri [1979] AC 757 at 778-779 (Lord Wilberforce).

(2) Whether renunciation by conduct or inaction can be inferred is to be assessed objectively. It must not be taken out of context and must be assessed against the whole backcloth of dealings: Woodar Investment Development Ltd v Wimpey Construction UK Ltd [1980] 1 WLR 277 at 287-288, 299.

(3) The acceptable test for renunciation is whether the threatened or insisted unauthorised mode of performance is a commercially significant deviation from the agreed mode of performance: Ross T Smyth & Co v TD Bailey Son & Co [1940] 3 All ER 60 at 72 (Lord Wright).

D2(2). Discussion

25.Having considered the entirety of the evidence, I am not satisfied that the Plaintiff has shown any anticipatory breach of the Service Agreement on the part of Zhang.

26.To begin with, the Plaintiff’s pleaded case in its Re-Amended Statement of Claim (“RASOC”) on Zhang’s breach is as follows:

“4. Up to the date hereof, in breach of the Service Agreement, Zhang has failed to carry out any of her obligations to assist NFG in seeking of professional parties to provide public relations services.

5. By reason of this breach, Zhang was in repudiation of the Service Agreement.”

27.The Plaintiff’s RASOC is silent on what conduct of Zhang constituted her anticipatory breach.

28.In relation to the terms of the Service Agreement, it is noteworthy that it does not spell out any information regarding any of the projects for which Zhang was supposed to seek professional parties to provide PR services; nor does it stipulate any milestone dates or events stating what should be done by when.

29.As such, in the actual implementation of the Service Agreement, one would have expected some indication of the relevant businesses or projects on the part of NFG which required PR services, so that Zhang would be in a position to ascertain NFG’s PR needs and gauge what would need to be done. At the very least, Zhang would reasonably expect that there would be an idea of some essential elements of the tasks expected of her.

30.The Plaintiff’s primary answer is that Zhang ought to have come forward to ask NFG for instructions. I am unable to accept that submission:

(1) It is not part of the Plaintiff’s pleaded case, whether as a matter of construction of the Service Agreement or by way of a potential implied term, that it was Zhang’s duty to ask NFG for instructions. Effectively, the Plaintiff’s position in this respect is that Zhang would need to take the initiative of asking NFG what she would have to do and her failure to do so would amount to a repudiatory breach. This does not make commercial sense and is not consistent with the purposes and objectives of the Service Agreement.

(2) Under cross-examination, Kwok repeatedly said that the Service Agreement was a “standard” agreement, and it is the “trade practice” that PR personnel would take the initiative to gather information. But Kwok was not in a position to comment on the so-called “trade practice” because it transpired that he had in fact never previously instructed PR professionals before entering into the Service Agreement. The Service Agreement was the first one of this kind that Kwok was involved in. Apart from Kwok’s own assertions, there is no evidence as to the commercial standard of which a PR advisor in Zhang’s position would be expected to fulfil in order to kickstart the performance of the Service Agreement or the like.

(3) Clause 1 of the Service Agreement refers to “media and public perception issues” and “formulation of appropriate core messages to reinforce preferred corporate profile and positioning. Clause 3 mentions “the profile of its senior management” and Clause 4 concerns “substantive media monitoring on trends and development related to the related projects”. It is simply inconceivable that any PR expert or consultant, without any information regarding these elements, could have been in a position to embark upon any work with a view to performing the Service Agreement.

31.Next, the Plaintiff argues that since Zhang knew that the PR services would be for Shinelong (which was admitted in her oral testimony at trial), she ought to have taken steps to acquire some understanding of how she could assist in procuring PR services for Shinelong. However, this appears to be merely a repetition of the above argument that Zhang ought to have come up with some ideas on her own as to how the Service Agreement should be performed. This is untenable for the reasons stated above. To say the least, even if Zhang was aware of the fact that the PR services were intended to be for Shinelong and also Shinelong’s line of business, she would still reasonably require further inputs on matters such as Shinelong’s business plans, any events which Shinelong intended to organise, and the corporate positioning that Shinelong was planning to take in order to map out the appropriate PR strategies for the company. Such information would have to come from NFG.

32.Insofar as the Plaintiff contends that more could probably have been done on Zhang’s part or other PR service providers could have done more, Zhang’s best-effort obligations are not breached merely because somebody else might have done more: Pui Ying Middle School at §§98-102. Each case obviously turns on its own facts. In any event, this issue would not arise in the first place given my conclusion that NFG did not provide any instructions at all as to Zhang’s performance.

33.Further, I have also taken into account the following matters which lend further support to my finding that the Plaintiff has failed to establish Zhang’s breach:

(1) NFG sought to terminate the Service Agreement just 3 months after the commencement of the Service Agreement, which was 7 months before the expiry of its term.

(2) It is Kwok’s own evidence that the Service Agreement was entered into at least in part due to his desire to strengthen business ties with Shie; and the alleged termination came at a time when the relationship between Kwok and Shie had turned sour.

(3) I do not accept Kwok’s evidence that Zhang was not reachable since around December 2019. Kwok failed to explain why he could not have at least contacted Zhang despite his knowledge of her residential address as stated in the Service Agreement. Moreover, Kwok’s explanation that he did not ask for any other personal details of Zhang because she was then Shie’s girlfriend does not make sense.

(4) Finally, the Demand Letter dated 4 February 2020 (issued on behalf of the Plaintiff) did not identify what Zhang ought to have done (as now contended) under the Service Agreement but failed to do. Neither did it mention at all that Zhang was not reachable at any stage.

34.For these reasons, I conclude that the Plaintiff has not shown that Zhang was in breach of the Service Agreement, or that any breach was such as to amount to a renunciation of the Service Agreement.

35.The Plaintiff’s claim in breach of contract is therefore dismissed.

E. UNJUST ENRICHMENT

36.In respect of the Plaintiff’s claim for unjust enrichment, the following questions are set out in Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd (2004) 7 HKCFAR 79 at §67: (1) Was the defendant enriched? (2) Was the enrichment at the plaintiff’s expense? (3) Was the enrichment unjust? (4) Are any of the defences applicable?

37.The principles on the unjust factor of total failure of consideration are summarised in Zief Incorporated v Tekchandani Ajai Mohan [2021] 3 HKC 69 at §§25-27 (Recorder Eugene Fung SC):

(1) “Consideration” in the context of a claim in unjust enrichment is different from that in the law of contract. It does not mean the quid pro quo for there to be a binding contract as it is used in the law of contract. It refers to the condition which formed the basis of the plaintiff’s transfer to the defendant of the benefit in question.

(2) It is crucial to correctly identify and characterise the transaction providing the basis for the defendant’s enrichment, and it is only then can one identify the relevant anticipated performance and ascertain whether it has totally failed.

(3) The usual consideration that fails which gives rise to restitution is the promised counter-performance. If money was paid to secure performance and if performance fails, the inducement which brought about the payment is not fulfilled.

38.Zhang contends that the claim in unjust enrichment fails because:

(1) Whilst a contract continues to subsist between the parties, one party who makes a payment to the other party in accordance with his obligations under the contract cannot be allowed to mount a claim in restitution for the return of that sum since such a claim would be inconsistent with what the parties had agreed: citing Shanghai Tongji at §§90-92; The Evia Luck (No 2) [1992] 2 AC 152 at 165D-E; Barton v Morris [2023] AC 684. As Ribeiro PJ said in Shanghai Tongji at §92:

“While a contract continues to subsist between the parties, one party who makes a payment to the other party in accordance with his obligations under that contract cannot be allowed to mount a claim in restitution for the return of that sum since such a claim would be inconsistent with what the parties had agreed. It is in this sense that the contract would be “undermined” or, as Professor Birks puts it, that the restitutionary claim would “subvert bargains” ([Birks, An Introduction to the Law of Restitution (1989 Rev ed.)], p.47).”

(2) A party relying on total failure of consideration must establish that he has no contractual obligation to confer the relevant benefit on the defendant. If the contract is still in subsistence, a restitutionary claim based on total failure of consideration fails: citing The Evia Luck (No 2).

(3) The test of total failure consideration lies on whether the promisor has performed any part of the contractual duties, not whether the promisee has received any contractual benefits: citing Au Chi Chiu & Ho Sau May v Ho Chi Hung [2020] HKCFI 2089 at §21.

39.During oral closing submissions, Zhang’s counsel confirmed that Zhang treated the Plaintiff’s premature termination as itself amounting to a repudiatory breach, and that at the latest, by filing and serving the Defence, Zhang has accepted the Plaintiff’s repudiation. In the premises, on each party’s case, there is no longer any subsisting contract. Indeed, the Service Agreement had a ten-month term, which had long lapsed by the time of the trial.

40.Zhang submits that since the Shares were transferred at the time when the Service Agreement was subsisting, the restitution claim could not be established. I do not think that proposition is supported by the authorities. Instead:

(1) Where a contract has been terminated for breach, its provisions do not necessarily exclude a claim in unjust enrichment. This holds true even where the claimant has committed a repudiatory breach: Goff & Jones on Unjust Enrichment (10^th edn) §§3-15, 3-40.

(2) The Australian decision of Mann v Paterson Constructions Pty Ltd [2019] HCA 32 is cited in Goff & Jones on Unjust Enrichment (above) 3-15 in support of the proposition that it is essential to distinguish between benefits in respect of which no unconditional right to payment under the contract has accrued, and those in respect of which such a right has accrued. For example, in Mann, there was a building contract which provided for work to be paid for in stages and the work for some of those stages had been completed when the contract was terminated following the innocent party’s acceptance of repudiation. It was held that no claim in unjust enrichment could be allowed in respect of work within the completed stages (where an unconditional right to those payments has accrued). In this scenario, the innocent party’s action will be limited to one for the agreed sum and damages for breach.[2] However, in respect of benefits where there is no unconditional accrued right, the claimant can choose between claiming in unjust enrichment or for breach of contract (with the amount of recoverable in restitution limited by the price of the contract).[3]

(3) In other words, the Court did not propound a rule to the effect that whenever a transfer is made pursuant to a subsisting contract, restitution for unjust enrichment is somehow automatically precluded. Instead, the key enquiry is to ascertain whether the counterparty has acquired an unconditional right to earn those payments.

41.Zhang does not seem to have any substantive response to the above propositions. In any event, I do not think Zhang had any accrued right of payment during the time in which the contract was subsisting, given that under the Service Agreement, such a right would need to be earned by Zhang’s corresponding performance of the contract.

42.Zhang’s remaining argument is that there was no “total” failure of consideration in the present case. Mr So for Zhang contends that the evidence at trial shows that Zhang had at least (1) held a conference with the NFG executives; (2) engaged entrepreneurs in Mainland China; and (3) set aside time for the completion of the Service Agreement. However, according to her pleaded case and witness statements, the Zhang’s position has been that she was under no obligation to perform the Service Agreement at all in the absence of any requests or instructions from the Plaintiff without making reference to any of the work she has allegedly carried out. During his oral closing submissions, Mr So accepted that he could not advance any argument beyond his pleaded case. Obviously, had it been Zhang’s defence that she had performed some part of the Service Agreement such that there was no total failure of consideration, this ought to have been pleaded so that the Plaintiff would have had the opportunity to address this allegation. I therefore rule that it is not open to Zhang to seek to run the argument that the failure of consideration was not total simply by relying on what Zhang alluded to at trial.

43.In any event, for the sake of completeness, I am not convinced that there is sufficiently cogent evidence that Zhang has performed any part of the contractual obligations:

(1) First, in her witness statement, Zhang said that “no work had been done by [her]” under the Service Agreement. It is only under cross-examination that she alluded in general terms – for the first time – to having contacted several tycoons in Mainland China. Yet, it is difficult to see how this amounts to seeking professional PR personnel to provide PR services. Nor is there any documentary record evidencing the same.

(2) Second, Zhang relies on Kwok’s evidence that there was a meeting with Zhang in November 2019. However, there was no details as to what transpired at that meeting and how such a meeting related to the work required under the Service Agreement.

(3) Third, the fact that Zhang had allegedly freed up her time in preparation for serving NFG is neither here nor there. This does not in any way evidence performance of any contractual duties.

44.Accordingly, there was no counter-performance emanating from Zhang which provided consideration for the Plaintiff’s transfer of the Shares: Zief at §§25-27. I find that there was a total failure of consideration.

45.Apart from the above, Zhang has not pleaded any defences to the restitution claim such as change of position.

46.As regards relief, it is common ground that the Shares are valued at HK$4,004,000. Although the Plaintiff pleaded alternatively for the transfer of the Shares to it, I do not see any basis to order the transfer of the Shares in species.

F. DISPOSITION AND COSTS

47.Accordingly, I make an order that Zhang do pay the Plaintiff the sum of HK$4,004,000.

48.I also make a costs order nisi that Zhang do pay 40% of the Plaintiff’s costs, to be taxed if not agreed. This deduction in costs reflects the fact that the Plaintiff has not been successful in its claim in breach of contract which constituted a major part of the Plaintiff’s action and incurred more than half of the time spent at trial.

49.The above order nisi shall become absolute unless an application to vary the same is made within the next 14 days.

Mr Wong Hok Yan, instructed by Patrick Mak & Tse, for the Plaintiff

Mr Simon So and Mr Herman Ho, instructed by Francis Kong & Co, for the Defendant