The Chartered Bank v. Raymond Sinclair Romaine O'Neill and James William Middleton t/a Pestex Pest Control Co

HCA008845/1981

BETWEEN

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Coram: Mr. Commissioner Clough

Date: 17th January 1983.

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JUDGMENT

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1. These are my reasons for giving judgment on the 17th January 1983 for the Plaintiff Bank for the sum of $155,235.69 with interest and costs against the second Defendant Mr. Middleton.

2. By a specially endorsed writ issued on the 14th December 1981 the Plaintiff sued the first Defendant Mr. O'Neill and the second Defendant, described as "trading as PESTEX PEST CONTROL COMPANY" alleging in the Statement of Claim that they were at all material times customers of the Plaintiff and indebted to the Plaintiff in respect of an overdraft amounting to $27,794.38 and in respect of a fixed loan against a trust receipt amounting to $127,441.31. The Plaintiff claimed interest on the sum of $155,235.9 at the rate of $91.89 per day from the 10th December 1981 until payment.

3. The first Defendant failed to give notice of intention to defend and on the 12th February 1982 the Plaintff obtained judgment against him pursuant to Order 13 for the amount claimed with interest and costs and proceeded with the action against the second Defendant.

4. By paragraph 2 of his Defence filed on the 17th February 1982 the second Defendant alleged that the first Defendant had traded as the sole proprietor of Pestex Pest Control Company (which I will refer to as "the business") and that the second Defendant was never a proprietor of the firm nor a customer of the Plaintiff.

5. By paragraph 3 of his Defence the second Defendant pleaded that he had been induced to advance $49,834.48 to the first Defendant "on behalf of the said Pestex Pest Control Company" by the false representation that the first Defendant would admit him to the partnership in the business but he had never been admitted. The second Defendant further pleaded that for some considerable time he had believed himself to be a partner in the business and had held himself out to third parties as such. However he had not so held himself out to the Plaintiff and the Plaintiff had not acted on any such representation made by the second Defendant or any other person. The Plaintiff's claim against the second Defendant was accordingly denied in the ensuing paragraphs of the Defence.

6. By its Reply filed on the 30th April 1981 the Plaintiff pleaded that the second Defendant was estopped from denying that he had been a partner in the business because he had instituted partnership proceedings against the first Defendant on the 8th June 1981 and sworn affidavits in those proceedings on the 8th and 29th June 1981 in which he admitted that he was a partner in the business.

7. Other matters pleaded as the basis for estoppel were that with the aid of his affidavit of the 8th June 1981 the second Defendant had obtained an interim injunction restraining the first Defendant from dealing with the assets of the business and thereafter the second Defendant had through his solicitors' letter dated the 10th June 1981 held himself out to the Plaintiff as being a partner in the business.

8. At the hearing counsel for the Plaintiff conceded that all the matters pleaded to found the estoppel relied on in the Reply had occurred after the relevant liabilities of the business to the Plaintiff were incurred and the trial was conducted on the basis that the Plaintiff founded its claim against the second Defendant on his admissions in the partnership proceedings. Indeed it is clear that the Plaintiff, far from believing the second Defendant to be a partner in the business before the institution of the partnership proceedings, supplied the first Defendant with a letter dated the 9th June 1981, which he exhibited to an affidavit filed in those proceedings on the 15th June 1981, stating that the first Defendant was the sole proprietor of the business and that he and his daughter Miss Lorraine O'Neill were the authorized signatories of the accounts in the business name with the Plaintiff.

9. To prove its claim against the first Defendant the Plaintiff first called two witnesses to establish that the business had incurred the debts claimed during the period between 1977 and June 1981 when the second Defendant was alleged to have been a partner in the business.

10. The evidence of Mr. Bow Yat-keung of the Imports Department of the Plaintiff was to the effect that since the 24th February 1981 the business had been indebted to the Plaintiff to the extent of $(HK)124,806.26 (the equivalent of $(US) 23,493.32) paid by the Plaintiff under a Bill of Exchange dated the 12th November 1980 drawn under an irrevocable letter of credit opened by the Plaintiff in favour of Time Mist Inc at the request of the business. The letter of credit had been opened to enable the business to purchase insecticides and the Plaintiff had released the documents of title to those goods to the business against a trust receipt dated the 25th November 1980.

11. The evidence of Mr. Lai Kam-ching who was in charge of current accounts with the Plaintiff was to the effect that the business had two active accounts with the Plaintiff, namely a No.1 Account (003-570-055-81033) and a No. 2 Account (003-570-055-81831) and that the No. 2 Account (which went into overdraft on the 28th February 1981) was overdrawn to the extent of $27,034.20 on the 30th June 1981.

12. As a result of the suspension of the operation of the accounts pursuant to the interim order of the court in the partnership proceedings there had been certain manipulations of the figures of principal and interest. Suffice it to say that eventually counsel for both parties were able to agree that for the purposes of these proceedings the amount of the overdraft of the No.2 Account of the business should be agreed at the figure of $27,034.20 on the 30th June 1981. It was further agreed that the principal amounts of both the debts of the business to the Plaintiff and the rates of interest thereon should be as pleaded in paragraph 3 and 4 of the Statement of Claim.

13. There being no dispute concerning the indebtedness of the business, the effective issue, which both counsel acknowledged to be the sole issue, was whether or not the second Defendant was a partner in the business at the time when the above mentioned liabilities were incurred by the business to the Plaintiff.

14. To prove that the second Defendant was a partner in the business at all material times the Plaintiff relies on what the second Defendant himself said in the earlier partnership proceedings in which he was alleging by his originating summons and in evidence that he was such a partner and in which the first Defendant was denying it.

15. The substance of what the second Defendant said in his affidavit of the 8th June 1981 is to the following effect.

16. The second Defendant stated that in May 1977 when he retired from the Royal Hong Kong Police Force he was invited by the first Defendant to become a partner in the business which was concerned with pest control services generally, but also had a sole agency in Hong Kong for a product known as "Time Mist" manufactured in the U.S.A. by the General Time-Westclox Corporation. The second Defendant conceived that this was an excellent product which should sell well in S.E. Asia.

17. He was invited by the first Defendant to take control of the "Time Mist" side of the business and it was agreed that he would share in the profits of the business on the basis that he would be entitled to 49% of the net profits from the sale of "Time Mist" products. He also agreed to do his best to promote the general welfare of the business but would not be entitled to a share of the profits from the general pest control side of the business.

18. At the time the business was heavily in debt. The first Defendant owed the General Time-Westclox Corporation about $52,000 for stock delivered which had already been sold and the proceeds dissipated. Another shipment of "Time Mist" had been delivered and another $50,000 odd would be needed to pay for it. Both the bank accounts (No.2 Account for the "Time Mist" side of the business and No.1 Account for the general pest control side of the business) were overdrawn and the first Defendant owed about $10,000 to members of his club.

19. However the second Defendant decided to accept the second Defendant's offer because he attributed the debts to bad management and not a bad product and he decided to inject capital and good management into the business.

20. A solicitor was jointly instructed to advise and draft the necessary documentation to put the agreement into effect but due to technical difficulties the agreement was never committed to paper and the Defendants decided to proceed on their verbal agreement.

21. The second Defendant borrowed £10,000 from his mother in England and from this money he paid off debts and liabilities of the business including a debt of $49,834.48 which he paid on the 18th October 1977.

22. At the time of the formation of the partnership the first Defendant was the sole signatory of cheques and he told the second Defendant that the firm's overdraft facilities with the Plaintiff would be prejudiced if the second Defendant were to become a joint signatory. The second Defendant accordingly agreed that the first Defendant should remain the sole signatory for the time being and whilst the overdraft facility was still required. The second Defendant anticipated that his injection of capital and efforts to promote the firm would soon render the overdraft facility redundant.

23. The second Defendant devoted himself to the promotion of the firm. He specified in his affidavit figures of the total turnover of the firm from sales of "Time Mist" to demonstrate substantial increase in annual turnover between 1977 and 1980 and the establishment by him of markets abroad and in Hong Kong. He had worked extremely hard for the firm and had not taken a cent by way of his share of the profits since 1977.

24. In the latter part of 1977 the first Defendant stopped showing the second Defendant the bank statements. When the second Defendant became insistent the first Defendant adopted a tyrannical and overbearing attitude and so the second Defendant did not press the matter. He continued to believe his efforts were boosting the credit balance of the accounts and that there was no need for concern.

25. The second Defendant had paid an average of about $30,000 per month into the accounts and there should have been a heavy credit balance. To his consternation he had now discovered that during April alone the No.2 Account overdraft had increased from $4,655.05 to $16,584.42 and was continuing to get worse. He had also discovered that the first Defendant was using the firm's funds to his own ends. The first Defendant had acquired various credit cards and was spending wildly and paying the bills out of the firm's accounts. Unless enjoined from doing so the first Defendant would continue to dissipate the assets of the firm.

26. To anticipate a denial by the first Defendant of his ever having entered into partnership with him the second Defendant exhibited a bundle of letters written by the first Defendant to a Mr. E.R. Irwin, in connection with the "Time Mist" business in 1977, in which there are references to the second Defendant as his partner.

27. The first Defendant having filed an affidavit on the 15th June 1981 in which he denied the existence of a partnership between the Defendants, the second Defendant filed a further and lengthy affidavit on the 29th June 1981 in reply.

28. The first Defendant had exhibited to his affidavit a bundle of letters written by the second Defendant in 1977 in which he described himself as "General Manager". In reply the second Defendant exhibited to his second affidavit a substantial bundle of letters (extending from page 79 to page 425 in the bundle) spanning the period from 1977 to 1981 in which the word "partner" was used both by the second Defendant and of him. He added that since the first Defendant actually resided at the address where all the letters were written or received he could hardly deny knowledge that the second Defendant was holding himself out as a partrer to all the world. There had not been a word of den of the second Defendant's partnership since its inception and there were many more letters in the partnership files similar to the exhibited letters.

29. The second Defendant described as preposterous the first Defendant's allegation that the second Defendant had lent him the sum of $49,848 on the 6th October 1977, to purchase stock, as a friendly gesture, interest free for four years. This and other money had been borrowed from his mother who had worked and saved all her life to accumulate some capital. During the existence of the partnership the second Defendant had invested $103,006.72 and during the period since 1977 he had drawn out a total of $5,600.

30. As to the partnership, it was formed by oral agreement in May 1977 whilst the Defendants were sitting in the second Defendant's car entering the Lee Gardens Hotel car park on a trip to see the Philippine Consul-General about a shipment of "Time Mist" products. The second Defendant continued in paragraph 10 of his second affidavit as follows:-

"It had come to the point where I had at that time been helping the Defendant with his business for about 3 weeks or so and had told him that unless something final was settled between as I would not be prepared to go on doing so. He offered me 40% of the business and I counter-offered 50%. He insisted that he "keep-control" however, and we finally settled for 49% to me and 51% to him. We were both under the legal misapprehension at that time that his majority share of profits gave him a effective management control over the affairs of the firm. However the bargain was struck."

31. After saying that he had continued with his efforts to promote sales of "Time Mist" products and received every month a copy of the No.2 Account, he said in his second affidavit that he had decided that their oral agreement should be reduced into writing. He went on to give an account of the Defendants consulting a solicitor in early August 1977 who had suggested that they form a limited company but that this suggestion was never inplemented and the Defendants decided to proceed on the existing oral agreement.

32. In paragraph 20 of his second affidavit the second Defendant said,

"I am a partner in the whole of the Pestex business and am liable therefore for all the debts and that is why I sought and obtained the order I did, which is referred to in paragraph 22 of the Defendant's affidavit".

33. He went on to explain that through four long years he had been under the misguided impression that the first Defendant's 51% holding in the firm gave him majority control and that there was nothing the second Defendant would do about the first Defendant's behaviour towards the firm and the second Defendant. Eventually the second Defendant became so desperate at being in what he would describe as a "Catch-22" situation that he sought legal advice which resulted in the partnership proceedings. In paragraph 25 the second Defendant expressed the fear that if the first Defendant were allowed to continue trading the second Defendant's liability for the first Defendant's debts caused by his profligate and irresponsible spending would force both the Defendants into bankruptcy.

34. The second Defendant stated in paragraph 26 of his second affidavit that throughout the period since 1977 He had survived on remittances from his mother and he exhibited a bundle of letters to confirm this.

35. The first Defendant, who had submitted to judgment, was not called as a witness for the second Defendant.

36. The second Defendant gave evidence and called no other witnesses.

37. In evidence at the trial the second Defendant gave an account of the discussions between the two defendants in 1977 about his coming into the first Defendant's business. He stated that when the Defendants were sitting in his car in the Lee Garden's Hotel car park he had told the first Defendant he was not willing to work for him but would consider a partnership in the company. The first Defendant had then said that he would offer the second Defendant a partnership in the "Time Mist" side of the business and they would talk at a later date about a full partnership including the pest control side. The second Defendant suggested a 50:50 split and the first Defendant wanted 49:51 with him in control of the "Time Mist" business.

38. The first Defendant went on to say that subsequently he arranged an appointment with a Mr. Bridge at a solicitors' firm, Deacons, and both Defendants had gone and given instructions of their intentions to Mr. Bridge. These intentions were that they "would enter into agreement to operate the marketing of the 'Time Mist' products." Mr. Bridge had drawn up an agreement but added a qualifying letter indicating that the agreement was not suitable.

39. The second Defendant said in evidence that the agreement was "concerned with possible partnership" and was never signed by the first Defendant. As a result of Mr. Bridge's advice the documentation for a limited company was prepared by him but the idea of partnership agreement and of a limited company was rejected because the first Defendant said there would be difficulties with his overdraft facility and with the supplier in the U.S.A.

40. The second Defendant said he was 26 in 1977 and the first Defendant was then 55. The second Defendant had no prior business experience and he accepted from the first Defendant that it might prejudice the latter's overdraft facility with the Plaintiff if the second Defendant became a signatory to the accounts. He went along with this and considered he might become a signatory at a later date when the account was "solvent".

41. Consistently with his earlier affidavit evidence in the partnership proceedings, the second Defendant described how he had borrowed £10,000 from his mother in England and injected capital into the business, paying for stock and purchasing a Skoda vehicle for the pest control side of the business. He had received no salary or profits except $5,000 to pay his landlord to avoid eviction and a wrist watch bought for him by the first Defendant. Between 1977 and 1981 he made no drawings from the company apart from the $5,000 mentioned above and he had got by On a regular supply of money amounting to a total of around £30,000 from his mother in England. To endeavour to pay his rent he had started importing dog meal food from Thailand under the name Eacchus Trading Co. He had, he said, paid for his own accommodation, fuel for the company vehicle and for tickets for overseas trips apart from one business trip to Singapore and another to the Philippines in 1981.

42. The second Defendant's evidence was to the effect that throughout the period between 1977 and 1981 he believed he was a partner in the "Time Mist" side of the business. When the first Defendant stopped showing him bank statements it became evident to the second Defendant that the first Defendant was up to no good but, when tackled about it, the first Defendant told the second Defendant he could leave if he didn't like it. As the second Defendant had injected capital into the business he considered the only way he could get his money back was to try and get the business turning over and solvent.

43. He alleged, as he had done in the partnership proceedings, that by the fourth year he had greatly increased the turnover of "Time Mist" and was paying in about $20,000 to $30,000 into the account every month. He presumed the account was quite healthy, but as the turnover increased the first Defendant applied for increased letters of credit from the Plaintiff and for credit cards of various kinds. He was spending extravagantly and paying from the "Time Mist" account.

44. He came to realise that he'd spent four years building up the company to get back his money but the first Defendant had sole control of the bank account and was using the money for his own purposes. He had put up with this situation far so long because his mother in England was in poor health and he did not have the heart earlier to tell her he'd "blown" her money.

45. Asked in chief about the partnership action which he began on the 8th June 1981 he said that at that time he honestly believed himself to be a partner, although it had only been "verbally" agreed some four years previously, and he considered the first Defendant's profligate spending of the account would result in proceedings against him and the first Defendant. He could not control this spending since the first Defendant and his daughter were the only signatories of the account and the first Defendant had many times refused to let him be a signatory.

46. He added that when he swore his two affidavits in the partnership proceedings he believed himself to be a partner. It was not until he saw the first Defendant's affidavit filed in those proceedings that he fully realised that the first Defendant never had any intention of letting him have any profit but the first Defendant just wanted his work and profits for himself.

47. Under cross-examination the second Defendant confirmed that he had agreed to let the first Defendant remain the sole signatory of the No.2 account because the first Defendant had told him it might prejudice credit with the Plaintiff. He had agreed to this and that they would reconsider the position when the account became "solvent". He accepted that the irrevocable letter of credit and the trust receipt appeared to refer to a "Time Mist" shipment. He calculated that this shipment alone should have raised $200,000 which would have more than paid off the letter of credit liability. The reason he had started the partnership proceedings was that money was being received from sales and paid into the bank account which he reckoned should have been $100,000 in credit but was in fact overdrawn by about $20,000.

48. He confirmed under cross-examination that he would have been happy that the proceeds of sale of the goods purchased with the credit facility of the letter of credit should be applied to repay the Plaintiff. He did not know what had happened to the proceeds of sale of this particular shipment and that was why he began the partnership proceedings.

49. It was put to the second Defendant that on the 4th July 1981 he had agreed to Terms of Settlement in the partner-ship proceedings on the basis that he had a 49% interest in the business. He replied that what had happened was that all he wanted to recover out of the partnership proceedings was what he had put in to the business. There being total disagreement on the partnership issue, he had agreed to the Terms of Settement in their present form because his under-standing at the time was that after the accounts had been drawn up his entitlement under the Terms of Settlement would come to approximately the sum he had put into the business.

50. In answer to a question from me the second Defendant said that he did not wish to depart from anything he had said in his affidavits in the partnership proceedings.

51. In the light of the evidence before me the onus is upon the Plaintiff to establish against the second Defendant on the balance of probabilities that the Defendants were partners in the business of Pestex Pest Control Company at the time when the business incurred the liabilities giving rise to the Plaintiff's claims in this action.

52. It has not been contended that if the Defendants are held to have been partners at the relevant time, the first Defendant did not have the express or implied authority to incur the relevant liabilities on behalf of the partnership and I emphasize that the second Defendant's case was conducted at the hearing on the footing that the sole question was whether the second Defendant was a partner in the business at the material time.

53. Expressing the issue by reference to the terms of section 3(1) of the Partnership Ordinance (Cap. 38) the Plaintiff has to prove on the balance of probabilities that at the material times the Defendants were carrying on business in common with a view to profit. The source of such a relationship is an agreement, express or implied: Lindley on Partnership, 14th ed. at p.14, and whether or not it arises in the present situation is a question of mixed law and fact: Keith Spicer Ltd. v. Mansell (1970)1 ALL E.R. 462 (CA) at p.463.

54. In this case there is no written agreement and so the intention of the Defendants must be ascertained from their words and conduct.. In so far as an oral agreement between the Defendants is alleged by the Plaintiff the question arises whether the agreement has in fact stipulated terms which give rise to the relationship of partners: Lindley, p.71.

55. Furthermore the second Defendant relies on the settled proposition that an admission by a person that he is a member of a particular partnership is not necessarily conclusive. Such an admission may be explained away or contradicted by evidence, particularly where it has been made under an erroneous supposition: Lindley, p.p. 128-9.

56. The plaintiff relies heavily on the admissions contained in the second Defendant's affidavits in the partnership proceedings to establish an oral partnership agreement. The Plaintiff also relies on the conduct of the parties which it is contended was consistent with such an agreement in that the second Defendant was left to run the "Time Mist" side of the business and received no salary, the absence of the receipt of any profit by him being attributable to the fact that, on the face of it, the business was not making money.

57. On behalf of the second Defendant his counsel contended that, whilst the second Defendant admitted he believed until recently that he was a partner, the evidence suggested very strongly indeed that the first Defendant was not a party to any agreement for a partnership during the conversation between the Defendants in the Lee Gardens Hotel car park in 1977. The basis for the second Defendant's belief that he was a partner was, it was contended, the mere discussion of partnership between the Defendants in the car park. It was clear that the second Defendant expected a formal agreement but the first Defendant had refused to have the partnership legally approved or to form a limited company.

58. As to the four years of unsalaried work done by the second Defendant, this was explained counsel contended by the evidence of the dilemma in which the second Defendant found himself after putting his mother's money into the business and his decision to carry on and restore the solvency of the business in order to recover what he had put in.

59. Counsel for the second Defendant further contended that the first Defendant regarded himself as the sole proprietor of the business. Reliance was placed on the first Defendant's letters to the Plaintiff, particularly the letter dated the 5th January 1978 informing the Plaintiff that no transactions of the business would be valid unless signed by him and the letter dated the 2nd February 1978 authorizing the first Defendant's daughter to draw cheques on the business accounts and sign Bills of Exchange and other instruments binding the business.

60. The second Defendant's acceptance of the terms of the Terms of Settlement filed on the 4th July 1981 in the partnership proceedings on the basis that the second Defendant claimed a 49% interest in the "Time Mist" side of the business was, it was contended, explained by the second Defendant's evidence that he had accepted those terms on advice when given to understand that the formula embodied in the terms would restore to him what he had put in to the business after the debts of the business, including the debts due to the Plaintiff, had been paid.

61. As between the Plaintiff and the second Defendant I found that the Plaintiff had proved, on the balance of probabilities, that the Defendants were partners in the business when it incurred the liabilities to the Plaintiff which are the subject of these proceedings.

62. The evidence of the second Defendant in both his affidavits in the partnership proceedings amounts to the unequivocal assertion that in 1977, in the car park in the Lee Garden Hotel, the Defendants agreed that the second Defendant would be admitted into the business with the first Defendant, to take control of the "Time Mist" side of the business and to do his best to promote the general welfare of the business, it being also agreed that the second Defendant would be entitled to 49% of the net profits from the sale of the "Time Mist" products.

63. This is not a situation where a person asserts facts which he believes erroneously to give rise to a partnership at law. On the contrary he has asserted on oath, in an affidavit sworn after obtaining legal advice, facts which clearly give rise to a partnership relationship between the Defendants. Furthermore, when such a relationship was denied by the first Defendant, the second defendant reiterated on oath in his second affidavit of the 29th June 1981 that the oral agreement was made after he had told the first Defendant that he would not be prepared to go on working in the business unless something final was settled between them. In the second Defendant's own words " ......the bargain was struck."

64. His evidence in both his previous affidavits was also to the effect that when the Defendants later abandoned the idea of a written partnership agreement or a limited company they decided to proceed on their existing oral agreement. In his evidence in the trial of this action the second Defendant used more equivocal language to describe the agreement but he told me there was nothing he wished to depart from in his previous affidavits which had been made to the best of his knowledge and belief at the time.

65. The second Defendant's explanation for his turn about and his present contention in this action that the Defendants were not partners is that when he saw the first Defendant's affidavit filed in the partnership proceedings he realised that the first Defendant never had any intention of letting him have any profit but just wanted his work and profits for himself. In my judgment this explanation, in conjunction with the second Defendant's adherence to his previous affidavit evidence, leads to the conclusion that the first Defendant made the oral partnership agreement with the second Defendant but did not intend at the time to perform his side of the agreement.

66. It follows, in my judgment, on the second Defendant's own evidence, that there was an enforceable oral partnership agreement made between the Defendants in 1977. The fact that the first Defendant may not have intended to perform his part of the agreement does not mean that the agreement was not expressed to be made or that it did not when considered objectively create legal rights and obligations once it was made. On final analysis, on the Defendant's own affidavit evidence, the agreement was expressed to be made as a binding agreement in a commercial context and the first Defendant is in breach of it.

67. In my judgment there is nothing in the conduct of the parties to justify the inference that there was no oral partnership agreement.

68. The Defendant has himself explained in his evidence why he agreed that the first Defendant should remain the sole signatory of the No.2 account with the Plaintiff. It was because the first Defendant told him it might prejudice his credit with the Plaintiff if the second Defendant were added as a signatory.

69. The registration of the first Defendant at all material times as the sole proprietor of the business under the Business Registration Ordinance is not a matter to which I attach any great weight, nor do I consider that any appreciable weight should be given to the fact that the Defendants appear to have informed the Revenue that the second Defendant was an employee in the business.

70. On the other hand it is clear from the second Defendant's own evidence that he worked for 4 years to build up the "Time Mist" side of the business very substantially, described himself for most of the time, and with the first Defendant's knowledge, as a partner in the business, injected capital into the business, was never paid any salary and received only about $5,000 and a wrist   watch out of the business while he lived on remittances from his mother. It is also clear from letters exhibited to the second Defendant's first affidavit in the partnership proceedings that in 1977 the first Defendant was referring to the second Defendant as his partner in business correspondence.

71. Accordingly I found that as between the Plaintiff and the second Defendant the Plaintiff had established that the second Defendant was a partner of the first Defendant in the business at the material times and was liable as such for the claims of the Plaintiff in this action in respect of which I gave judgment for the Plaintiff.

Representation:

Mr. Patrick Fung (instructed by Deacons) for Plaintiff.

Mr. Clifford Smith (instructed by Jenkins, Oliver & Au) for 2nd Defendant.