Lau Wai Ying v. Cheg Bo Chu t/a Ming Chu Boutique With Its Accessory Property Investment Section

HCSA000013/1982

Headnote

Appeal from Small Claims Tribunal. No evidence to support finding of adjudicator. Appeal allowed. Observations on desirability of provision for Legal Aid for parties aggrieved to assist in formulating points of law.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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Coram: Hon. Kempster, J.

Date: 8 February 1983

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JUDGMENT

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1. On the 18th of August 1982 the claimant commenced proceedings under the Small Claims Tribunal Ordinance, Cap. 338 claiming from the defendant $4,000 for services rendered to her as an estate agent. Judgment was given in her favour on 3rd November.

2. On the 14th of January of this year I gave leave to appeal on two points of law: first in relation to the construction of the documents adduced in evidence and secondly to the evidence put before the adjudicator as a whole so as to allow the defendant - notionally - to contend that the judgment given in the claimant's favour was not supportable in the light of the evidence. In the absence of legal advice to or representation o either party it was difficult to isolate points of law on the application for leave and to keep the parties to such points on the hearing of the appeal. This was hardly surprising. Legal aid should surely be available to those aggrieved by the decision of an adjudicator in the context both of Small Claims ??and of Labour Tribunal proceedings??.

3. Both parties attended before the adjudicator for preliminary hearing on the 14th of September 1982. On the 21st of October each made a statement and, when compared these statements showed that it was common ground that on the 10th of August 1982 the defendant and her younger sister had visited the claimant's premises and sought her assistance in negotiating the purchase of a domestic flat. As a result of the claimant's efforts a "Provisional Sales and Purchase Agreement", which was "subject to contract", was concluded between the defendant and the vendor of the property, Mr. Wong Sing Fat on the same day. She paid the vendor a deposit of $2,000. Provision was made for the buyer, who was identified as the defendant, to purchase the property as an agent or in the name of any one she chose. The defendant, again identified as the purchaser, also signed an agreement to pay the claimant a service charge of $4,000 after the parties, that is the vendor and the purchaser had completed the formal contract at a solicitor's office on the 14th of August following. If, therefore, the defendant, had so concluded the contract the claimant would have been entitled to $4,000. Again it was common ground that on the 11th of August the landlord had declined to proceed with the sale to the defendant and repaid her deposit adding a further $2,000 pursuant to clause 5(b) of the "Provisional Sales and Purchase Agreement"; that further sum being described as compensation. It was also common ground that the landlord in fact assigned his interest in the domestic flat to the defendant's younger sister and her husband on the 2nd of September 1982.

4. The claimant alleged to the adjudicator that there had been an agreement in the nature of a conspiracy between the defendant, her younger sister and the vendor of the property calculated to deprive her of the commission she had earned by introducing the vendor to the defendant and by negotiating the purchase price. This allegation the adjudicator accepted. To quote from her judgment:

"The claimant was no doubt instrumental in brining the vendor and the purchaser of the property together and in effecting the sale and purchase of the property at a reduced price. This service was performed by her in consideration of the fee which ??the defendant had arreed to pay. The fact that the defendant had subsequrtly subsitdted the?? name of her younger sister for that of hers in the assignment would not affect the right of the claimant."

5. It may be that what the adjudicator found in fact happened. The claimant alleged today that it was the defendant who put up the money for the purchase of the flat and that she obtained a loan for the purpose. But no vestige of evidence to such effect was put before the adjudicator orally or by writing. Accordingly, the finding of the adjudicator that the defendant had substituted the name of her younger sister being totally unsupported by evidence, the judgment in the claimant's favour cannot stand and the appeal is allowed.

Representation:

Claimant CHENG Bo Chu in person

Defendant LAO Wai Ying in person