Pearl and Dean Ltd v. Bogata Diamond Ltd
Read the full judgment text of HCA 6014/1980 on BabelCite. This High Court CFI judgment was delivered on 9 June 1981.
1. By the present action, the Plaintiff claims the sum of $63,377.70, plus interest, in respect of forty-three weeks' rental allegedly due from the Defendant under a contract for hiring advertising space on the Mass Transit Railway (M.T.R.) during the period spanning March 1980 to January 1981. For its part, the Defendant counter-claims for the return of $11,791.20, representing eight weeks advance payment of rental, and also for a further sum of $6,858.60, being money expended on the preparatio
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HCA006014/1980 Contract - misrepresentation - exclusion clause - whether time of the essence - Hedley Byrne v. Heller action for negligent misstatement.
Coram: Rhind, J. in Court Date of Judgment: 9 June 1981. ----------------- JUDGMENT ----------------- 1. By the present action, the Plaintiff claims the sum of $63,377.70, plus interest, in respect of forty-three weeks' rental allegedly due from the Defendant under a contract for hiring advertising space on the Mass Transit Railway (M.T.R.) during the period spanning March 1980 to January 1981. For its part, the Defendant counter-claims for the return of $11,791.20, representing eight weeks advance payment of rental, and also for a further sum of $6,858.60, being money expended on the preparation of an advertisement. 2. The Plaintiff enjoys the exclusive right to let advertising space on the M.T.R. The Defendant is in the business of wholesaling and retailing diamonds. 3. In early January, 1980, Mr. Stanley Yeung, one of the Defendant's directors contacted Miss Stella Ng, who is one of the Plaintiff's sales' staff, with a view to renting advertising space on the M.T.R. 4. At that time, the Defendant had just the two sets of business premises, one in the Far East Exchange Building and the other in Elizabeth House, but had already made arrangements to move away from both those premises in favour of having its whole operation under the one roof in Gloucester Tower which is integrated with the new Landmark Building. 5. Chater Road Station, which is the Hong Kong-side terminus of the M.T.R. has direct exits into the Landmark Building, so it was not unnatural for Mr. Stanley Yeung's thoughts to turn to advertising at Chater Station which was so conveniently located in relation to the Defendant's new business premises. 6. It was agreed by both sides that it was on or about 10th January, 1980 Miss Ng made her first call on Mr. Stanley Yeung at his office to discuss the Defendant's advertising requirements. At that stage, the M.T.R. was already operating on Kowloon side between Kwun Tong and Tsim Sha Tsui, but the extension of the service to Hong Kong-side was not due to take place till 12th February, 1980, which was the date Chater Station and Admiralty Station were to be opened to the public. 7. For the Defendant, its negotiations with the Plaintiff were carried out principally by Mr. Stanley Yeung. He is a successful, middle-aged businessman, who has had experienced not only of dealing in diamonds, but also in stocks and shares, real estate and gold. Also present at some stages of the negotiations was another of the Defendant's directors, Mr. William Yeung, who is Stanley Yeung's son. Mr. William Yeung studied at a business school in Japan for several years, and impressed me as an extremely capable young man. 8. Representing the Plaintiff in the negotiations at all material times was Miss Ng, a young woman who has completed a freshman's course in business administration at Ling Nam College. After various sales jobs, she started with the Plaintiff in April, 1979. 9. There is no dispute that from the outset Mr. Stanley Yeung made it clear to Miss Ng that it was in relation to its new premises in the Landmark that the Defendant was interested in advertising its business. 10. As the result of negotiations between Mr. Stanley Yeung and Miss Ng, a contract in writing (Agreed Bundle, page 24) on the Plaintiff's standard form of contract document was executed on the Defendant's behalf on 24th January, 1980, when Miss Ng called on Mr. Stanley Yeung at his office that day. The actual individual who signed the document for the Defendant was Mr. William Yeung, despite Mr. Stanley Yeung having been the main one to carry out the negotiations. Nothing hinges on who did the actual signing. 11. During the trial both Mr. Stanley Yeung and Mr. William Yeung contended in effect that they were unaware that Mr. William Yeung's signing the document (Agreed Bundle, page 24) on behalf of the Defendant would result in the Defendant being bound by a contract. That is an assertion which I just cannot accept from two businessmen of such obvious ability and shrewdness as the Yeungs. True, the document was in English, but that was no reason for them not to understand it, for Mr. Stanley Yeung has a reasonable working knowledge of English, whilst Mr. William Yeung is completely fluent, having been educated at a public school in England. Perhaps they failed to grasp the full legal implications of what was being signed that day, but, nonetheless, the conclusion is irresistible that by signing that document William Yeung committed the Defendant to the written contract it embodied. In any event, to hold otherwise would be to fly in the face of the Defendant's pleading, for the Defence expressly admits this written contract was made. That part of the Defence was doing no more than bow to the inevitable, for it was hopeless to pretend that the Defendant had not entered into this written contract. 12. By this written contract, the Defendant agreed to take advertising space No. 31 on the south trackside of Chater Station at a weekly rate of $1,734 (less 15% agency commission) i.e. $1,473.90 for 250 weeks from the first week of March, 1980. From a letter (Agreed Bundle, at page 27) handed over by Miss Ng to the Defendant at the time the contract was signed, it can be seen that the more precise commencement date for the display was 2nd March, 1980. 13. At the time of signing, the Defendant paid the Plaintiff $11,791.20 for the first eight weeks' rent. 14. Both sides agree that the contract was subject to a term that it could be terminated by either party at any time by giving 10 weeks notice to the other. 15. Before the written contract was executed on the Defendant's behalf, it was not possible for the Plaintiff's customers to visit Chater Station, as building work was still in progress there. Miss Ng herself had not seen the advertising spaces she was selling, though she at least had a plan (Agreed Bundle, at page 70), showing the layout of the advertising spaces on the walls at the trackside in relation to the escalators. Although a customer could not visit Chater Station itself, there was nothing to prevent a trip to the stations already operating on Kowloon side for anyone interested in getting an idea of the layout of an MTR station, and wishing to see some of the Plaintiff's advertising panels in place. 16. At some stage Mr. Stanley Yeung himself made such a trip to Tsim Sha Tsui Station. He says he cannot be sure whether it was before or after the contract (Agreed Bundle, page 24) was signed. I think more likely than not, it was before he allowed the contract to be signed. From such a visit, Stanley Yeung had an opportunity to form his own impressions of the features of an MTR station. 17. Towards the end of January the Defendant duly made its move into Gloucester Tower. 18. Well before the 2nd March, 1980-commencement date incorporated in the contract, the Defendant had delivered the material to be displayed on the advertising panel to the Plaintiff. It is not in dispute that the amount expended by the Defendant to get its advertising material prepared was $6,858.60, an amount which the Defendant includes in its counter-claim. 19. The 2nd March, 1980 passed without the Plaintiff mounting the Defendant's advertisement in the panel at Chater Station. For the Defendant, 4th March, 1980 was an important day: it was the official opening of their new premises in Gloucester Tower. As part of the celebrations, the Defendant exhibited some important European jewellery, and one of their directors from England flew out for the occasion. The directors in Hong Kong would have liked to show off their new advertisement at Chater to the English director. Unfortunately, the advertisement did not actually get put up till the night of 6th March, 1980. 20. Understandably, Mr. Stanley Yeung, for the Defendant, was far from pleased with the Plaintiff at the delay which had occurred. Further cause for disillusionment quickly came when the Defendant's staff were able to observe the advertisement on display while the station was operating. What the Defendant had not realized, and may be the Plaintiff had not either, was that for about fifty per cent of the time, a track at Chater, the Hong Kong-side terminus, is occupied by a stationary train, with the result that the advertising panels on the wall behind the train are obscured during that time. 21. In fact panel No. 31 which was allocated to the Defendant is not as badly affected as most other panels because it is at the place where the front of the train stops. Only a part of panel No. 31 is likely to be covered by a stationary train. 22. The Defendant complains it was also unhappy about another feature of panel No. 31, namely that it is located alongside an escalator with the result that someone standing on the other side of the platform behind the escalator cannot see panel No. 31. 23. Wishing to rid itself of the whole arrangement, the Defendant purported to rescind the contract by sending the Plaintiff a letter dated 28th March, 1980, as follows:-
24. The Plaintiff declined to accept this purported rescission of the contract, and continued to display the Defendant's advertisement till January 2nd 1981. The Plaintiff now wants to be paid by the Defendant at the rate of $1,473.90 per week for the whole period the advertisement was displayed. 25. The Defendant disputes liability under the contract, contending that it is entitled to rescission on account of one or more of three oral misrepresentations allegedly made by Miss Ng to Mr. Stanley Yeung during the pre-contract negotiations. 26. As pleaded, those three alleged misrepresentations are (1) that the display of the advertisement would be in the best possible location at the station; (2) that the public's view of the panel would be unobstructed and (3) having been informed by Mr. Stanley Yeung that the advertisement had to be in position on or before 4th March, the opening day of the Defendant's new premises, Miss Ng assured him that it would be in place on or before 2nd March. 27. A major difficulty faced by the court has been trying to work out what Mr. Stanley Yeung and Miss Ng actually did say to each other and when they said it. They had several meetings and telephone conversations together. I found myself wondering whether either of them really remembered what had been said, and when. Neither of them impressed me as a dishonest witness, but I could not see my way to accepting what purported to be their verbatim accounts of conversations together. I think that each of them was trying to reconstruct what he or she had probably said or wished he or she had said. I think it might well be that their recollection of these purported excerpts from conversations was coloured by subsequent events. 28. As the Defendant alleges misrepresentation, the Defendant carries the burden of proving that misrepresentations were in fact made: Vernon v. Keys(1). 29. I will now consider each of the alleged misrepresentations in turn. That The Display of The Advertisement Would Be In The Best Possible Location At The Station 30. Even if Miss Ng had said something along those lines, it could not amount to a representation. Such an observation falls into the category of mere "advertisers' puff" which could never be expected to induce any reasonable man to enter into a contract. Whether a particular advertising space is in "the best possible location at the station" does not lend itself to verification, being a matter for purely subjective judgment. (See Spencer Bower & Turner's Actionable Misrepresentation, 3rd Ed. para. 49). 31. In any event, the evidence adduced on the Defendant's behalf at most contended that the promise was for the best possible location at the trackside, not the whole station. 32. Assuming for the sake of argument that Miss Ng did promise Mr. Stanley Yeung the best possible location at the trackside, there is no scope for arguing that this amounted to a "representation", as understood by the law. 33. I saw no reason to doubt the sincerity of the Plaintiff's manager in stating that he did not consider there was any more suitable location for the Defendant's advertisement than the space of which the Defendant now complains. Who can gainsay him on such a subjective matter? The Defendant has not established which is a better site, and there is no way a court can decide the merits of an advertising site. There are too many variables to take into account. 34. In any event, I am not even satisfied that Mr. Stanley Yeung was promised the best possible location. What Miss Ng told the court about having indicated to him that she would try to get him a "good position" or "quite a good position" sounded equally credible to me. That type of observation has no contractual significance at all. 35. A promise of the best possible location at the trackside is too nebulous for a court to give effect to. In fact the promise made to the Defendant was obviously for something less: it was limited to such sites as were still available. A more worthless promise from a contractual point of view is difficult to conceive. 36. The first alleged misrepresentation avails the Defendant nothing in view of the foregoing. That The Public's View Of The Panel Would Be Unobstructed 37. From the Defendant's letter dated 28th March, 1980, it can be seen that the original complaint against Miss Ng was that she had represented that the sign could be seen from both sides of the platform. She does admit having said words to that effect but only after the contract had been signed. If she made that observation after the contract was signed, no question of misrepresentation can arise. Even if she uttered those words before the contract was concluded, there was still no misrepresentation for the fact of the matter is that the sign can be seen from both sides of the platform. Whilst the line of sight athwart the platform is obstructed at some points by the escalator wall, there are, nonetheless, plenty of other places on the opposite platform from which the sign can be seen. Unless Mr. Stanley Yeung made it clear to Miss Ng that the panel was not to be alongside an escalator I do not see where his cause of complaint arises on this version of the words. On the evidence before me, I was not satisfied that he had indicated to Miss Ng that he did not want his advertisement alongside an escalator. 38. Even if Mr. Yeung might reasonably have been entitled to interpret Miss Ng's remark that the sign could be seen from both sides of the platform as meaning that there was an uninterrupted view athwart the platform, there would still be the problem that I have not been satisfied that the remark was made before the contract was signed. The way Miss Ng described it in court, it sounded as if she was just reassuring and flattering a client by telling him what a good bargain he had just made in signing the contract. I see no reason to prefer Mr. Stanley Yeung's version about the time when this alleged representation was made. As he told the story, there was no reason for him to distinguish between the pre-contract and post-contract stages, because he did not even consider a contract had been made. 39. Another version of what Miss Ng is supposed to have said is to be gathered from a letter (Agreed Bundle at page 42) written by the Defendant's former solicitors on 14th May, 1980. According to that, Miss Ng is supposed to have said that the display "would be totally unobstructed and would be fully open to the view of the public at all times". That letter then goes on to complain that, "The actual location of the poster is obstructed from sight by an escalator bank as well as by the trains that stand on that side of the platform". According to that, Miss Ng is supposed to have represented not only that there would be no escalator bank to obstruct the poster, but also that there would be no trains doing so either. The Defendant's pleading also makes this double-barrelled complaint about the escalator and the standing trains. 40. Mr. Stanley Yeung's evidence in court was to the effect that Miss Ng had represented to him that she would find him a space unobscured from both sides, which he understood to mean that the space must not have any obstructions like escalators in front, but he had appreciated she had not meant the advertisement would be visible when trains were in the station. 41. Had the Defendant's letter of 28th March, 1980, the Defendant's former solicitor's letter of 14th May, 1980, and the Defendant's pleadings all alleged a uniform representation, and if in turn Mr. Stanley Yeung in the witness-box had alleged the same representation, the court might have been more disposed to make a finding in the Defendant's favour, but the court is left in a position where it just does not know what representation was made (or when). Accordingly, I am not prepared to find this alleged misrepresentation established. 42. Supposing I had been able to find that the Defendant had been induced to enter into the contract on account of a misrepresentation about the absence of an escalator in front of the advertisement, the practical advantage to the Defendant would have been minimal because I would not have been willing to treat the contract as rescinded for that misrepresentation. I will deal with this more fully when I come to the topic of the Misrepresentation Ordinance. Suffice it to say for the moment that, in my opinion, the Defendant's real complaint against the Plaintiff is not that the advertisement is alongside an escalator: that is merely an excuse being seized on to try to get out of a contract the Defendant does not like. The Defendant's real complaint is that the trackside at Chater is generally a far less attractive location than it had hoped for. The Defendant was offered alternative sites but was just not interested. I have no doubt Mr. Christophis, the Plaintiff's manager, would have substituted a site away from an escalator if escalators were the Defendant's complaint. A party cannot just be released from a bargain without satisfactory cause. There can be no release merely because a party finds it does not like the bargain it has made. Stanley Yeung Advised Miss Ng The Advertisement Had To Be In Position On Or Before 4th March, The Opening Day Of The Defendant's Premises And She Assured Him It Would Be In Position Before 2nd March 43. Substantially the same allegation is to be found in the Defendant's letter of 28th March, 1980: "The display was to have been installed on 2nd March. We advised Stella Ng that this date was critical as we were officially opening our premises on 4th March." 44. The evidence before me did not support any allegation that Miss Ng was made aware during the pre-contract negotiations that the grand opening of the Defendant's new premises was to be 4th March. From Stanley Yeung's own evidence, it emerged that Miss Ng might not have been aware of the date of the official opening until she got an invitation to attend for the celebrations as a guest. Such an invitation is hardly likely to have predated the conclusion of the contract on 24th January. 45. Miss Ng in her testimony denied the allegation in the pleadings that she had been told by Stanley Yeung that the official opening was to be 4th March, and for his part he was perfectly frank in saying he could not remember now whether he had told her. 46. For want of supporting evidence, this alleged oral representation is doomed to fail. 47. Various other grounds also exist to deprive this supposed oral representation of any legal effect. 48. Firstly, even as pleaded, the representation is only as to the future. As a matter of law, future representations are generally devoid of legal effect. Far from being as pleaded, however, I am satisfied that, at most, any representation made by Miss Ng was along the lines that the Plaintiff would try its best to get the poster up by the 2nd March, the date referred to in the letter dated 21st January 1980 (Agreed Bundle, at page 27). That is what Miss Ng's evidence amounted to, and I accept what she says on that. 49. Secondly, the existence of a provision about time in the written contract dated 24th January means that the court is severely limited in the extent to which it is entitled to pay any regard to any pre-contract oral representations on the subject of time, for the court cannot permit parol evidence to contradict or vary the terms of the written contract. 50. Time is dealt with in the right hand column of the written contract made on the 24th January where there is a reference to "Display Dates Week Nos. 80/03/1 To 84/12/2". It is common ground that "80/03/1" means the first week of March 1980. That written contract has to be read in conjunction with the Plaintiff's letter dated 21st January (Agreed Bundle, at page 27) which I am satisfied accompanied the written contract, and which I consider should be treated as part of it. That letter refers to "...... the display which commences on 2nd March 1980". 51. My interpretation of the written contract is that there was in effect an express written term that the display was to commence on 2nd March, 1980. The real question which needed to be asked was whether that term made time of the essence of the contract. The pleading alleging oral misrepresentations about time distracted attention from the question which the Defendant should have concentrated on. 52. Was time, then, of the essence in the present contract? I think not. As I have already indicated, the Plaintiff was given no reason to suppose that either the 2nd March or the 4th March were especially important dates to the Defendant. In those circumstances, the Plaintiff had no reason to expect that it would make any difference to the Defendant if this contract, which was of two hundred and fifty weeks duration, started a few days late. Unlike some commercial contracts, there is nothing about a long-term advertising contract which would indicate any intrinsic urgency in the absence of some special circumstances. At the time of entering into the contract, the Plaintiff had no reason to suppose its commercial purpose might be defeated by a few days delay. 53. Thirdly, the express terms of the written contract protected the Plaintiff from the consequences of any delay. As the exclusion clause on which the Plaintiff seeks to rely could have a bearing on the other alleged representations besides the one relating to time, I think the more convenient course is to deal with it under a separate heading. Exclusion Clause 54. In reasonably sized print on the front of the written contract made on the 24th January appear the words "Subject to Pearl & Dean Ltd.'s Standard Conditions Of Trading" immediately below the place where William Yeung signed on behalf of the Defendant. The Plaintiff's Terms and Conditions of Trading are embodied in its booklet entiled "MTR Poster Advertising Rate Card No. 1" (Exh. P1). 55. On behalf of the Defendant it is submitted that the Defendant is not bound by the Plaintiff's Terms and Conditions of Trading because their existence was not drawn to the Defendant's attention before signing the written contract. 56. To my mind, those words "Subject To Pearl & Dean Ltd.'s Standard Conditions Of Trading" on the face of the written contract were sufficient to incorporate the Plaintiff's Terms and Conditions of Trading into the contract. I find it hard to conceive of two people better equipped to look after themselves in business negotiations than Stanley Yeung and William Yeung. Nor can I imagine two contracting parties more on an equal footing than the Plaintiff and the Defendant in the present case. It is in my opinion totally unreal for a contracting party of the Defendant's standing to claim it should not be bound by the provision "Subject To Pearl & Dean Ltd.'s Standard Conditions Of Trading" on the ground of lack of notice. If businessmen like the Yeungs choose to go signing contracts without bothering to read them, it hardly lies in their mouths to start complaining of lack of notice. It is not as if there were anything unusual in standard terms and conditions being incorporated in written contracts by reference. 57. Moreover, although Stanley Yeung cannot recall this happening, I am satisfied from Miss Ng's evidence that at her first meeting with him she handed him a copy of Exh. P1 and briefly went through its contents with him in the manner she described. 58. Little time need be spent on a suggestion from the Defendant that it should be treated as not enjoying equal bargaining status with the Plaintiff which was in a monopoly position by virtue of having the exclusive right to let advertising space on the M.T.R. According to the House of Lords in Photo Production Ltd. v. Securicor Transport Ltd.,(2) it looks as if the way is still open for the courts to relieve persons from the effects of exemption clauses contained in the standard form contracts of monopolies. The short answer to this submission is that the Plaintiff is not in the sort of monopoly position the House of Lords had in mind. Because the Plaintiff has the exclusive right to let advertising space on the M.T.R. does not mean it has a monopoly of advertising. The M.T.R. is merely one of myriad out-lets for advertising in this Colony. Obviously the sorts of monopolies the House of Lords had in mind were public utility undertakings dealing in essential services such as gas, water, or public transport (including the M.T.R. in its transport function) where the ordinary consumer has no effective choice other than to use that service on whatever terms the holder of the monopoly chooses to dictate. 59. That the Defendant had sufficient notice of the Plaintiff's Terms and Conditions of Trading at the time of entering into the written contract is clear. Whether the Defendant will be bound by them, though, could be a different matter. Here S.4 of the Misrepresentation Ordinance, Cap. 284, could come into play, were there any misrepresentations which the Terms and Conditions of Trading sought to exclude. 60. That section provides:
61. Among the Terms and Conditions of Trading which the Plaintiff sought to rely on, if any misrepresentations were made, were the following.
62. It will be seen that Terms No. 6 and 11 both relate to time. Their combined effect is to make it clear that time was not to be of the essence in this contract. I see nothing unfair or unreasonable in either Term No. 6, or No. 11, so I would not have been prepared to hold that S.4 of the Misrepresentation Ordinance nullified their effect, had it turned out there had been any misrepresentation concerning time. 63. Even without resort to the Terms and Conditions of Trading, I determined that time was not of the essence in the present contract - a conclusion which applies a fortiori on the view I take that Terms 6 and 11 apply. 64. Bearing in mind my conclusion that no misrepresentations of any sort have been proved, the observation I am about to make on the effect of S.4 of the Misrepresentation Ordinance in the present case is of academic interest only. 65. I do not think that Term No. 3 excludes mere representations, being confined by its wording to overriding "... any other terms stipulated, incorporated or referred to by the Advertiser". 66. Thus, if, for example, I had been prepared to accept that there had been what amounted to misrepresentations, as pleaded by the Defendant, with regard to the advertising space being in the best possible location and being unobscured, I would not have regarded them as falling within the ambit of Term No. 3. 67. Having considered the Misrepresentation Ordinance in so far as it relates to exclusion clauses, it will now be convenient to consider the effect it might have had on the relief which would have been granted had any misrepresentation been established. Relief Under The Misrepresentation Ordinance 68. Had misrepresentation been established, one type of remedy which the court would have had to consider would have been rescission. That was the principal relief sought by the Defendant. However, in the circumstances of the present case, even if I had found all the allegations made by Stanley Yeung substantiated, I would still have refused rescission, regarding it as more equitable to declare the contract as still subsisting and awarding the Defendant damages instead of rescission. 69. This power for the court to award damages in lieu of rescission is to be found in S.3(2) of the Misrepresentation Ordinance.
70. Mr. Christophis, the Plaintiff's manager, was prepared to remedy the Defendant's complaint about the advertisement being alongside an escalator, and I certainly got the impression that he was prepared to do whatever the Defendant reasonably wanted to give it a site more to its liking down at the trackside, but the fact of the matter was that the Defendant was unwilling to have any of the sites there, once its representatives had seen the trains in operation at that location. The Defendant was seeking to use the alleged misrepresentations to get out of a bargain it did not like in any event. Wherever the poster had been located at the trackside, the Defendant would in all probability have been unequally unhappy. 71. However, as the Defendant had entered into a bargain to take space at the trackside, it had to accept the consequences, and persevere with the bargain until terminated. 72. Any damages awarded to the Defendant would have been nominal, representing the difference in value between site No. 31 and whichever site fitted the contract description for the period up till when the Defendant was allowed to move to the latter site. Date Of Determination Of The Contract 73. It was submitted on behalf of the Defendant that its letter dated 28th March, 1980 (ante) had the effect of giving the Plaintiff the ten weeks notice of termination required by the contract. That argument is plainly unsustainable. The letter in question was an attempt at rescission which the Plaintiff rejected. Both sides continued fully to be bound by the contract. There was not a glimmer of a suggestion in the Defendant's letter that it was tendering ten weeks notice, and there was nothing to justify the Plaintiff in supposing that ten weeks notice was being offered. If ten weeks after receiving the Defendant's letter of 28th March, 1980, the Plaintiff had taken down the poster, the Plaintiff would itself then have been in breach of contract. 74. As early as April 9 1980, the Plaintiff expressly (and correctly) informed the Defendant that if it did not desire to continue with the contract, it would have to give ten weeks notice. The Defendant chose to do nothing. The Plaintiff correctly treated the contract as subsisting. It was not until 19th December that the Defendant saw fit to give notice of termination. The Plaintiff then permitted the notice to be abridged from the ten weeks required by the Terms and Conditions of the Contract, having found a new customer to take over the site on 2nd January, 1981. 75. There was a certain degree of irony in the Defendant's contention that the Terms and Conditions of Trading were not incorporated in this contract. Without the advantage of Term No. 15 which permits cancellation on ten weeks notice the Defendant might well have found itself liable for the rent accruing during the full two hundred and fifty weeks of the contract. Hedley Byrne v. Heller 76. Although not pleaded, the Defendant's counsel seemed to think he might find an extra string to his bow in the decision of Hedley Byrne & Co., Ltd. v. Heller & Partners Ltd.(3) which lays down the principle that where certain types of "special relationship" exist so that one party relies on the other's skill and judgment there can be a duty of care not to cause damage by negligent misrepresentation. 77. Absence of any misrepresentation inevitably means that the Defendant's attempt to bring the Plaintiff within this head of liability founders from the outset. Moreover, I would not have thought that a salesgirl for an advertising company could be regarded as exercising the type of professional skill, knowledge or expertise which distinguishes "special relationships" in this branch of the law. (See Mutual Life Insurance Co., Ltd. v. Evatt(4)). Further, I am not satisfied that Mr. Stanley Yeung or the Defendant ever relied on Miss Ng's or the Plaintiff's skill or judgment. Collateral Constracts 78. Here was another unpleaded plank in the storm. 79. If Miss Ng promised Stanley Yeung that the Defendant's poster would be displayed on 2nd March, this, according to the Defence submission, is meant to amount to a separate collateral contract. I cannot see it myself. There is no scope for a collateral contract on this when it was an express term of the main contract that the poster was to be displayed on 2nd March. 80. What I find Miss Ng in fact promised has already been dealt with, and no useful purpose would be served by repeating it. Conclusion 81. In view of the foregoing there will be judgment for the Plaintiff for the 43 weeks' rent due to it for the period from 7th March, 1980 to 2nd January, 1981 at $1,473.90 per week, less the eight weeks' rent already paid in advance by way of deposit by the Defendant. Thus, the actual amount for which judgment is entered in the Plaintiff's favour is $51,586.50. I order that sum to carry interest at 3/4% per month from the time the Defendant fell into arrear until judgment, in accordance with Term No. 10 of the Terms and Conditions of Trading. 82. The Defendant's counter-claim is dismissed.
Representation: Mr. A. Huggins (Johnson, Stokes & Master) for Plaintiff Mr. N. Pirie (Fairbairn & Kwok) for Defendant (1) (1810) 12 East 632, affirmed (1812), 4 Taunt. 488 Ex. Ch. (2) (1980) 1 All E.R. 566 (3) (1964) A.C. 465 (4) (1971) A.C. 783 |