T.M. Ho H.C. So & Co v. Wong Hon Leung and Another

HCA014225/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 14225 OF 1998

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Coram: Hon Chung J in Chambers

Date of Hearing: 23 July 1999

Date of Decision: 23 July 1999

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DECISION

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1. The Plaintiff brings this action against the two named Defendants for charges for work done and services rendered. The amount of claim is $130,000. The Plaintiff is a firm of certified public accountants.

2. According to the Plaintiff, it was introduced to the 1^st named Defendant in 1977. The two named Defendants and businesses related to, or run by, the 1^st named Defendant were at that time under investigation by the Inland Revenue Department ("IRD"). The 1^st named Defendant instructed the Plaintiff to deal with the IRD investigation regarding this.

3. In an affirmation dated 1 February 1999, Mr Ho Thick Man of the Plaintiff stated that:

"It was agreed in writing by the Defendant on behalf of his wife and himself that they would pay the Plaintiff the sum of $35,000 in respect of each year of the field audit undertaken by the IRD on himself, his wife and his business."

The document referred to by Mr Ho is exhibited as "TM-2", it reads:

"I agree to accept your professional fee at the rate of $35,000 per Year of Assessment for handling the taxation affairs in connection with the field audit undertaken by the IRD on myself, my wife and the captioned business.

4. The Defendants indicated in their Acknowledgement of Service that they contest the claim. No defence was filed or served and judgment in the sum of $130,000 was entered on 14 October 1998 together with interest and costs.

5. The Defendants applied to set aside the said judgment. At the end of a hearing on 10 May 1999, Master Barnes set aside the judgment on condition that the $130,000 claimed by the Plaintiff be paid into Court. I understand that the condition has been complied with.

6. Both the Defence and Counterclaim filed by the Defendants on 21 May 1999, and the affirmations filed by the Defendants in support of the setting aside application put forward the same defence in essence. As regards the 2^nd named Defendant, it is alleged that there was no binding agreement between her and the Plaintiff for the Plaintiff to ground a claim against her. Further, the 1^st named Defendant alleged that the work done by the Plaintiff was done improperly or negligently. It was also alleged that there has been an over-charge, and this formed the basis of the counterclaim against the Plaintiff.

7. In the Plaintiff's affirmations, the Plaintiff asserted that it had performed the work properly.

8. Having heard the Plaintiff's submissions and perused the documents, I consider that the Master's decision to set aside the judgment conditionally to be a correct decision. I bear in mind that the Court of Appeal had said in a number of decisions that it is inappropriate and undesirable for a court to set out in detail why leave to defend ought to be given in an O.14 application. These remarks may also be applicable to this appeal. However, since the Defendants are acting in person, I consider it appropriate to set out briefly why I agree with the Master as follows:

9. I should mention that in coming to the conclusion of dismissing the appeal, I have taken into account the decisions and matters set out in pages 19G-21R of the transcript in the decision of Redland Concrete v. Hing Lee Construction, HCA 8140 of 1998.

10. For the above reasons, I agree with the Master and therefore dismiss the appeal with costs to the Defendants in any event.

Representation:

Mr Raymond Tsui, inst'd by M/s Peter Mo & Co., for the Plaintiff/Appellant

1^st Defendant in person, present

2^nd Defendant in person, absent (authorizing the 1^st Defendant as her representative at the hearing)