Lee Yin and Others v. Tse Kin Mon and Others
Read the full judgment text of HCA 698/1972 on BabelCite. This High Court CFI judgment.
1. The plaintiffs and the first defendant are a partners The first defendant refused to bring this action as a plaintiff hence the plaintiffs have joined him as a defendant.
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HCA000698/1972 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION ACTION NO. 698 OF 1972 -----------------
----------------- Coram: Briggs, J. in Court Date of Judgment: 5th January, 1973 ----------------- JUDGMENT ----------------- 1. The plaintiffs and the first defendant are a partners The first defendant refused to bring this action as a plaintiff hence the plaintiffs have joined him as a defendant. 2. The third defendant is a company which owns a ...(illegible) known as Diamond House. By an agreement dated December 30th ...(illegible) third defendant employed the first and second defendants as ...(illegible) of the Diamond House for seven years. 3. By that agreement, to which the plaintiffs were ...(illegible) the first and second defendants are to run the boarding ...(illegible) it were their own. They were to receive the profits ...(illegible) but guaranteed to pay the third defendant $5,000 ...(illegible) agreement expressly provided that the first and second defendants were not the sub lessees or licensees of the third defendant who retained possession of the premises. 4. The relevant clause in the lease reads thus:-
5. On January 19th 1968 the plaintiffs together with the first defendant entered into an agreement with the first and second defendants. I will call this agreement 'the service agreement'. The partnership agreed to finance the management of the Diamond House by the first and second defendants. Each partner subscribed a fixed sum of money. The agreement between the three defendants was recited. And it was provided that after the first and second defendants had paid the third defendant the $5,000 per month as stated in the agreement of December 30th 1967, the profits of Diamond House would be shared among the members of the partnership. This arrangement was to last for seven years. The first and second defendants, the two managers and all the members of the partnership - that is all the plaintiffs and the first defendant - signed. ...(illegible) hird defendant was not a party to this agreement. 6. This agreement is something of a curiosity for not only does ...(illegible) and defendant agree with himself but also there is no provision ...(illegible) of the second defendant who was not a partner with ...(illegible) and first defendant and who would therefore not be ...(illegible) to any share of the profits. 7. The plaintiffs claim damages against the first and second ...(illegible) breach of this contract. And they claim damages against ...(illegible) for conspiracy. There are also claims for an ...(illegible) decree of specific performance of the service ...(illegible). 8. The plaintiffs called the first plaintiff Lee Yin, as their sole witness. He said that after the service agreement had been signed, he himself acted as the manager of Diamond House for some four months but later the first defendant took over. After some hesitation he agreed that the partnership had accepted the resignation of the first defendant on 30th September 1971. And this fact is evidenced by the minutes of a meeting of the partnership which were exhibited. This witness said that the second defendant did nothing. In the same breath he said the second defendant was also a manager but said he did not perform any of the duties of a manager as they are set out in the service agreement. 9. The evidence of this witness was very unsatisfactory. It was contradictory and I cannot accept it unless it is corroborated in some way. 10. I do not see how the plaintiffs can recover damages against the first defendant under the service agreement. They accepted his resignation. 11. Mr. Lee said that the partnership had never agreed to his dismissal by the third defendant. But he also clearly said that he did not know if he had been so dismissed. Even if he had this has nothing to do with this part of the claim of the plaintiffs. 12. As to the second defendant there is no evidence that he was employed as a manager at all. He did nothing according to Mr. Lee except help to bring clients to the boarding house. No mention was made of a salary: he did not perform the duties of a manager. I do not see how the plaintiffs can succeed in their claim against him under this head. 13. The claim for damages against the first and second defendant for breach of the service agreement therefore fails. So of ...(illegible) does the claim for a decree of specific performance of that ...(illegible) This claim should never have been included in the statement ...(illegible) It is trite law that the courts will not grant specific ...(illegible) of a contract of personal services to an employer. 14. I now come to the claim for conspiracy against ...(illegible) defendants. 15. When the first defendant resigned from manager ...(illegible) third defendant took over. The conspiracy alleged is ...(illegible) defendants combined together to assist the third defendant possession of the premises. 16. I accept that the third defendant reassumed the management of this boarding house when the first defendant resigned. But the third defendant had never parted with possession of the premises: all that the agreement of December 30th says is that the first and second defendant were to manage the boarding house. Possession of the premises was specifically reserved to the third defendant. I have already quoted the relevant clause of the agreement above. Such a clause is not exceptional. Probably the third defendants wanted to keep themselves outside of any legislation restricting the recovery of premises by a landlord. 17. The only evidence before me was that of Mr. Lee and the documents. I heard no evidence of any conspiracy at all. Indeed Mr. Lee's evidence was that he was relying on an oral agreement made between the partnership (including the first defendant) and the third defendant. He said it was agreed between the partnership and the third defendant that the business of the boarding house should be handled by the first and second defendants. This is I have said was not pleaded and came very much as an after thought. 18. At the end of the case for the plaintiff I ruled that the second and third defendants had no case to answer and entered judgment on their behalf. The first defendant was unrepresented at the trial. He did not wish to give evidence, he merely addressed me on the document i.e. the service agreement and the minutes of the ...(illegible) at which his resignation was accepted. I dismissed the case against him. 19. There must be judgment for the three defendants with costs.
Representation: Mr. A.H. Suffiad (K.L. Wong & for Plaintiffs 1st Defendant in person Miss I. Cheung (L.S. Shum & Co. ) for 2nd Defendant Mr. A.H. Sakhrani (Kwong & Lam & Chan) for 3rd Defendant |
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