Playmates Industrial Co Ltd v. Richard Lau Lap Che
Read the full judgment text of HCA 1574/1979 on BabelCite. This High Court CFI judgment was delivered on 12 December 1979.
1. The Plaintiff claims from the Defendant $28,271 being the purchase money and insurance premium of a motor car paid to a motor car dealer for and on behalf of the Defendant at his request. The Plaintiff claims that the parties had agreed that this sum would be repaid to the Plaintiff out of commission earned by the Defendant whilst employed by the Plaintiff's associated company Play-N-Joy Ltd., and that it was an expressed and/or implied condition that the said sum or any balance thereof unpai
|
HCA001574/1979
-----------------
----------------- Coram: Mr. Commissioner Gittins, Q.C. Date of Judgment: 12 December 1979 ----------------- JUDGMENT ----------------- 1. The Plaintiff claims from the Defendant $28,271 being the purchase money and insurance premium of a motor car paid to a motor car dealer for and on behalf of the Defendant at his request. The Plaintiff claims that the parties had agreed that this sum would be repaid to the Plaintiff out of commission earned by the Defendant whilst employed by the Plaintiff's associated company Play-N-Joy Ltd., and that it was an expressed and/or implied condition that the said sum or any balance thereof unpaid would be immediately payable upon the determination of the Defendant's said employment. The Defendant's employment was duly determined. 2. The Defendant admits the payment of the said sum of $28,271 by the Plaintiff to the motor car dealer but alleges that the motor car purchased was a gift to him from the Plaintiff in the following circumstances:-
3. The Defendant entered into two employment agreements in writing. The first is dated 7th June 1978 with the Plaintiff company and second dated 19th July 1978 with Play-N-Joy Ltd. It is not disputed that the first agreement was executed because the Defendant wished to have formal terms of employment when Play-N-Joy Ltd. had not been incorporated, and the second agreement was entered into after the incorporation of Play-N-Joy Ltd. to replace the first agreement. The agreements are in identical terms except that the 5 year term commenced on 1st August 1978 in the first agreement and on 1st September 1978 in the second agreement. 4. Both agreements stipulated identical terms as to the term of employment, salary, increments, commission, holidays and a provision that the employer may determine the agreement by 6 months prior written notice. 5. The matter of a motor car was not mentioned in either agreement whether as a gift or whether there would be a loan of the purchase price and its repayment. 6. CHAN Tai-ho's evidence was that the 2 agreements in writing contained all the terms of agreement between the parties, that the Plaintiff's office and that of Play-N-Joy Ltd. were at Tsim Sha Tsui although there was a factory at Tuen Mun and there was no great emphasis on the Defendant having to be at the factory, that the matter of a motor car was not mentioned in the negotiations between him and the Defendant and that it was at the beginning of September 1978 or shortly before that the Defendant asked for a loan of $27/28,000 to buy a car to which request CHAN Tai-ho acceded. When cross-examined by the Defendant as to why, if it was a loan, the sum owing thereon was not deducted from the 6 months' pay in lieu of notice given to the Defendant on the termination of his employment, CHAN Tai-ho's reply was that he considered the loan and termination to be two separate matters. The Defendant also relied on the fact that despite the Plaintiff's allegation of a loan he had not been required to sign a promissory note or voucher to that effect. 7. CHU So-ying the Plaintiff's cashier gave evidence that she made out the cheque dated 12th September 1978 for $28,271 in favour of the motor car dealer for CHAN Tai-ho to sign in the following circumstances:-
8. The Defendant gave evidence in support of his pleading and was emphatic that he would not have taken up his employment if there was no gift of a car. He said that he queried the provision in the agreement dated 7th June 1978 for 6 months notice for the termination of employment which he said had not been previously agreed in negotiations, but that he did not mention the absence of any provision about the car because that was once for all and because he trusted CHAN Tai-ho to keep his promise to give him the car. He was asked in cross-examination why, if the car was a gift, he did not ask for the repayment of the $1,000 deposit he had personally paid, and his reply was that since Chan had been so generous he did not ask for repayment of the $1,000. 9. The oral testimony given on behalf of the parties tend to neutralise each other although the unchallenged evidence of CHU So-ying gives the edge to the Plaintiff. On the other hand if the Defendant had been legally represented I would expect that his case would have been put to that witness. 10. In my view what tips the scales in favour of the Plaintiff are letters written by its solicitors to the Defendant in connection with the termination of the Defendant's employment. 11. By a letter dated 9th March 1979 the said solicitors said in the second paragraph -
and by a further letter dated 12th March 1979 the said solicitors said in the last paragraph -
12. These 2 letters set out clearly the Plaintiff's claim that the $28,271 (and not $28,281.00 as claimed in the solicitors' letters) was a loan and this was communicated to the Defendant concurrently with his dismissal. The Defendant made no attempt to refute this claim until he swore an affidavit on 14th May 1979 in reply on the Plaintiff's application for summary judgment. The Defendant's failure to deny this formal claim causes me to come to the conclusion that the Plaintiff has proved its case on the balance of probabilities. 13. I give judgment for the Plaintiff on its claim with costs. 14. The Defendant has counterclaimed for an account and payment of 0.6% commission on all orders obtained and executed by Play-N-Joy Limited and paid for by the purchaser. The Plaintiff has admitted that the Defendant is so entitled on transactions up to 30th September 1979. 15. I give judgment for the Defendant on his counterclaim for an amount to be agreed between the parties, and in the absence of agreement to be determined by the Registrar. The Defendant is to have the costs on the counterclaim. 16. The above judgments on the claim and counterclaim are without prejudice to the costs of the first day and of the amendments to the pleadings to be the Defendant's in any event. 17. The amounts adjudged on the claim and counterclaim shall bear interest at 8% per annum from the date of the Writ of Summons until payment.
Representation: R.E. Mayne (F. Zimmern & Co.) for Plaintiff. Defendant in person. |