Selwyn Mar of Charles Mar Fan and Co v. Po Pui Leung
Read the full judgment text of HCA 10436/1983 on BabelCite. This High Court CFI judgment.
1. This is an appeal against the decision of Master Barrington-Jones on an Order 14 application. At the conclusion of the hearing I informed the parties that the appeal was dismissed. I promised to give the parties short reasons for my decision which I now do.
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HCA010436/1983
IN THE HIGH COURT OF JUSTICE HONG KONG ______ BETWEEN
_____ Coram: The Hon. Mr. Justice Mayo (in Chambers) Date: 17th January 1984. (Send on 23rd January 1984) __________ DECISION __________ 1. This is an appeal against the decision of Master Barrington-Jones on an Order 14 application. At the conclusion of the hearing I informed the parties that the appeal was dismissed. I promised to give the parties short reasons for my decision which I now do. 2. The plaintiff and the defendant were both partners in the firm of public accountants practising as Charles Mar Fan & Co. By a lengthy deed of dissolution the partnership was dissolved in November 1981. Shortly prior to the dissolution it is common ground that the plaintiff and the defendant entered into a collateral agreement. It is the terms of this agreement that are in dispute between the parties and are the subject matter of this litigation. It is the plaintiff's case that he paid to the defendant sum of $270,000 in consideration of the defendant not practising as an accountant for a term of two years from the date of the agreement. The defendant agrees that he received the said monies. However it is his contention that the agreement between the parties was that he would not act as a principal that is either as a sole practitioner or a partner in a firm of public accountants during this period. 3. When the plaintiff paid the said $270, 000 to the defendant he obtained from the defendant his signature to a document which reads as follows: "Mr. Selwyn Mar Present
5. In the defendant's affidavit in reply to the plaintiff's application for judgment he referred to a number of meetings and discussions which had taken place between himself and the plaintiff when this matter had been considered and agreed. The first question that I have to consider is whether it is arguable that the defendant will be able to give evidence concerning these discussions and what transpired. The problem he encounters of course is the parole evidence rule. The document I have referred to incorporates the essential terms of the agreement struck between the parties. 6. The circumstances where there can be rectification of a written document are limited. I do not think that it is open to the defendant to allege that there has been a common mistake. This has not been asserted in any of the affidavits in support of his defence. It is only in even more limited circumstances that rectification can be effected where there has been a unilateral mistake. For this to be ordered there must be some element of "either fraud, misrepresentation, unfair dealing, estoppel, or perhaps sharp practice." I am referring to the passage in paragraph 360 which appears on page 201 of the 25th edition of Chitty on Contract. I am satisfied that this accurately reflects the law on this subject. Equally on the basis of the material which has been placed before me in the various affidavits which have been sworn by these parties I do not consider that there can be any question of rectification of the written document I have referred to. 7. Miss Eu who was representing the defendant argued that even if the document accepted at its face value it was still possible for her to submit that the defendant had not been in breach of the agreement entered into between the parties. She claimed that it is possible to draw a distinction between a professional accountant and a public accountant. Section 29 of the Professional Accountants Ordinance Cap. 50 lays down the requirements to practice as a certified public accountant or public accountant . A public accountant must be a professional accountant but a professional accountant is not necessarily a public accountant. Every partner in a firm of public accountants must be a public accountant. Only a public accountant is able to lawfully sign various documents in relation to audits of some companies. Miss Eu argued that a professional accountant could work either as a consultant or as some other form of employee in a firm of public accountants. She referred to affidavits which had been sworn by three independent public accountants who deposed that carrying on a practice of public accountancy in Hong Kong carries a special meaning in the accountancy profession. It means carrying on a practice in partnership or as sole proprietor and does not include the situation while a professional accountant is being employed in a firm of public accountants whether as a consultant or employee. I accept that this may well be true. 8. In the affidavits filed by the defendant he denies that he has been practising as a public accountant. He deposes that he is a consultant to a Mr. Peter Y.H. Lam who is a public accountant. He denies that he has authority to sign the documents which must be signed by public accountants under the Ordinance. At the commencement of the hearing I asked Miss Eu whether the defendant has a current practising certificate as a public accountant. She informed me that he had. Indeed he has had continuous practising certificates since the date of the dissolution of the partnership. However shortly before the commencement of the present action he had written to the Association of Certified Accountants and had attempted to obtain the cancellation of his current practising certificate to no avail. Miss Eu submitted that simply because the defendant had a practising certificate as a public accountant did not mean. that he was necessarily practising as such. I agree that this may be the case. However even on the defendant's own evidence he agrees that he has been working as a consultant for Mr. Peter Lam. I do not think that it makes any difference that he has no authority to sign various documents. As I see it this is an entirely internal or domestic arrangement he has with Mr. Peter Lam. He is performing work in a firm of public accountants and I do not see how it can be argued that he is not practising as a public accountant. This view does not seem to me to be contrary to the views which have been expressed by the three independent public accountants I earlier referred to. 9. The defendant encounters another problem. Shortly after the dissolution he and Mr. Peter Lam sent a notice to the clients of Charles Mar Fan & Co. This notice reads as follows:
It will be noticed that the letters C.P.A. followed the names of both Mr. Lam and Mr. Po, the defendant. It will also be noted that they referred to "Our Office" and "We are no longer associated etc." No satisfactory explanation was forthcoming for the existence of this notice. It tends to contradict the assertions the defendant makes in his affidavit. 10. Having regard to all of the circumstances of this case I. have no doubt that the defendant has been practising as a public accountant and that this constitutes a breach of the agreement which was struck between the defendant and the plaintiff. I do not consider that the defendant has an arguable defence and accordingly I dismiss this appeal. The plaintiff will have his costs.
Representation: Mr. R. Mccallough of M/s Masons & Marriott for Plaintiff/Respondent. Miss Audrey Eu, instructed by M/s Philip K.A. Wong & Co. for Defendant/Appellant. |