Central Language Services, Ltd v. Plus Holdings Ltd

DCCJ007542/2002

DCCJ7542/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 7542 OF 2002

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Coram: H.H. Judge Muttrie in Chambers

Date of Hearing: 2 April 2003

Date of Judgment: 2 April 2003

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REASONS FOR JUDGMENT

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1.On the plaintiff's application under Order 14 of the Rules of the District Court, heard on 2 April 2002, I gave judgment in favour of the plaintiff for $234,330.00 with interest thereon at the rate of 8.125% p.a. from 22/11/02 to the date of judgment and thereafter at the judgment rate until payment, and costs of this action including costs of this summons to be taxed if not agreed. I now give reasons.

2.The plaintiff's claim was for the sum of $297,930.00 for professional services rendered by the plaintiff in relation to English to Chinese translations of documents, according to particulars of invoices set out in the Schedule to the Statement of Claim. The invoices were dated from 21 February 2001 to 28 October 2002. In fact part judgment was obtained before the Master for $63,600.00 which results in the balance for which judgment was given by me.

3.It is not in dispute that the plaintiff supplied the defendant with the services for which it claims. The defendant's defence, as appears from the affirmation of its authorised representative, Mr. Zou, is that the parties had to negotiate the price of the services and the terms of payment in respect of each transaction, but in fact no binding agreement was ever reached and therefore the defendant is not liable.

4.As appears from the documents filed, the plaintiff translated documents which related to the defendant's financial activities. The defendant says that this was done for the purpose of compliance with the listing rules of the Hong Kong Stock Exchange. The plaintiff sent an invoice for each job. Various invoices have been produced, chopped with "reminder" chops. The plaintiff also sent monthly statements. On 20 March 2002 the plaintiff wrote to the defendant demanding payment of a balance of $212,030.00, apparently without response.

5.On 22 November 2002 the plaintiff's solicitors sent the defendant a letter before action. This produced a response. The defendant sent a post-dated cheque for $200,450 direct to the plaintiff, with a covering letter of which the penultimate paragraph reads:

6.We apologise for not making repayment earlier, but under the current financial position of the Company and its subsidiaries, it is extremely difficult to make the full payment immediately. As a sincere gesture, we enclose for your attention a cheque of as the payment for the invoice no. 10387 issued by Equity and invoice nos. 193/01-0011108 and 717/01-0107031-A issued by CLS. Kindly consider not to take any legal action against the Company for the time being.

7."Equity" is a related company. In fact two cheques were enclosed, the relevant one here being for $63,600.00 in respect of two of the invoices issued by the plaintiff. The plaintiff's solicitors replied that the payments would be accepted on terms as to further payments to the plaintiff and Equity, but the terms were not met and the plaintiff issued proceedings. It was apparently on the basis of this cheque that part judgment was given for $63,600.00.

8.The defendant paid $42,500.00 on 8 February 2002, and $38,000.00 on 29 June 2002 in respect of invoices presented by the plaintiff, which do not form part of this claim.

9.It is clear from the evidence that the defendant ordered and accepted the plaintiff's services throughout. It knew of the plaintiff's charges throughout. It never disputed any of the charges and it settled some. When it received the letter before action, it did not dispute liability but issued a cheque in payment of two invoices, one of which, for $63,000.00, was the largest sum for which the plaintiff sought payment. Only in the defendant's affirmation in response to this summons does the defendant through its representative say that there was no binding contract in respect of the services rendered.

10.The plaintiff argues that the defendant's allegation is bare and unsubstantiated; it is late; it is not supported with by any contemporaneous document and in fact is inconsistent with contemporaneous documents. It is not to be believed. In support of this, the plaintiff relies on the judgment of Ma JA in Pacific Century Insurance Co. Ltd. v Cheng Hon Chung, [2002] HKEC 1601 in which he sets out the Order 14 principles by reference to earlier judgments, in particular that of Godfrey JA in Ng Shou Chun v Hung Chun San [1994] 1 HKC 155 and that of Bokhary JA in Re Safe Rich Industries Limited, Civil Appeal No.81 of 1994, unreported, 3rd November 1994 :-

"The test at the summary stage is indeed as simple as whether the defendant's assertions are believable. But it must be recognised - because failure to recognise it would create a debt-dodgers' charter - that whether the defendant's assertions are believable is a question to be answered not by taking those assertions in isolation but rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute."

11.The defendant argues that the proper inference to be drawn from the facts is that the charges for each job was to be agreed, and it was not agreed, or the defendant would have paid. Negotiations were going on throughout. The fact that some payments were made shows that the charges in respect of those jobs were agreed, and supports the defendant's proposition.

12.In fact the allegation that negotiations were going on throughout is a bare allegation, with nothing to support it.

13.Applying the principles set out above I had no hesitation in finding that the defendant's assertion, coming as it does after nearly two years of continuous dealings it totally incredible, and therefore gave judgment for the plaintiff.

Representation:

Mr. R. Lo of Messrs. W.M. Lo & Company for Plaintiff.

Mr. M.K. Lee of Messrs. T.C. Foo & Co. for Defendant.