Direct Force (HK) Ltd. v. Anne Song Yin Shin t/a Sound Research Production Co.

HCA011599/1995

1995, No. A11599

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

___________

___________

Coram: Hon Gall, J. in Chambers

Date of hearing: 21 August 1997

Date of handing down judgment: 5 September 1997

_______________

J U D G M E N T

_______________

1. The plaintiff was at all relevant times a company incorporated in Hong Kong and carrying on business in Hong Kong as an advertising company. The 1^st Defendant, Anne Song Yin-Shin who is the appellant herein, was at all relevant times trading either as a sole proprietor or in partnership with the 2^nd Defendant, who is not a party to this appeal, in a business known as Sound Research Production Company. Neither of these facts are in dispute. At the same time Anne Song, the respondent herein, was, at all relevant times other than at the time of the issue of the last invoice claimed in the Statement of Claim dated 22^nd April 1991, employed by the plaintiff as an account executive.

2. Common sense, together with what may be seen in the affidavits which have been filed herein proved that an account executive in the position of Miss Song would have been in charge of various clients whom the plaintiff served. Her work would have been to prepare material for them, determine the costs of services to be provided by the plaintiff to those clients and to raise invoices upon the normal terms and conditions of the plaintiff for payment for work done by the plaintiff for clients under her care and control.

3. It is common ground between the parties that an agreement was entered into in or about December 1990 where both the plaintiff and the defendants in this matter were associated in some way in the conduct of popular concerts to be held in Hong Kong. Those concerts were eventually held but were not a financial success.

4. On various dates between 4^th January 1991 and 8^th February 1991, invoices were raised by the Anne Song as advertising executive on behalf of the plaintiff, and were made out for payment by Sound Research Production Company. Those invoices contained in their particulars a claim for 2 1/2 % per month contract interest in the event that the amount outstanding was unpaid for more than 30 ays and this must at the time of the raising of the invoice and at the time of the conduct of any work done by the plaintiff, have been well known to Miss Song.

5. In early February 1991, Miss Song, the appellant herein, resigned her position with the plaintiff/respondent and left Hong Kong. After her departure on 22^nd April 1991, the plaintiff/respondent issued in respect of work done for Sound Research Production Company a further invoice upon the same terms and conditions as to payment as the preceding 12 invoices. The 13 invoices totalled a sum of $518,328.71 and the plaintiff claims that sum together with a sum of $742,412.46 being the interests calculated upon each invoice from the date which was due for payment at the rate of 2 1/2 %. The rate of interest is wrongly described in the writ as contractual interest at 2% per month . This appears to be a typographical error.

6. A writ of summons was issued in this matter in November 1995 as the 1^st and 2^nd Defendants left Hong Kong soon after Miss Song resigned her employment with the respondent and it was not until about the time of the issue of the writ that the respondent became aware of their return to the region. A defence was filed on 24^th November 1995 and a reply on 8^th December 1995.

7. On 21^st February 1997, the plaintiff took out a summons for judgment pursuant to O.14 of the Rules of the Supreme Court and an Order was made by Master Jennings on 10^th June 1997, the judgment being entered for the plaintiff in this action against the 1^st Defendant for the amount claimed in the Statement of Claim of $518,328.71 together with contractual interest as claimed in paragraph 2A of the Statement of Claim in the sum of $742,412.46 and further interests at the judgment rate from 11^th November 1995 until payment. An order for costs was also made to be paid by the 1^st Defendant. It is against that Order for the entry of judgment by Master Jennings that this appeal is now brought.

8. I accept at the outset that this appeal is a hearing de novo of the O.14 summons application for summary judgment and that the onus is clearly upon the appellant to satisfy the Court that there s an issue or question in dispute which ought to be tried : Tandy Rank Video v. Yee Hing Cassette Factory Limited [1991]1 HKC 136. I further accept that this is not a trial upon the affirmations which have been filed in this matter.

9. The first issue raised by Mr Kwok for the appellant is that there is no liability for the principal sum. He argues that the Statement of Claim is not certain as to the nature of the contract between the plaintiff and Sound Research Production Company and that in respect of some invoices, the amount claimed on the invoices are bare assertion and the quantum of such amount is a triable issue.

10. I am not with Mr Kwok in respect of the argument in respect of the principal sum. It is quite clear that an agreement was made between the plaintiff and Sound Research Production Company that certain work be done by the plaintiff for Sound Research Production Company. It is the contention of the appellant in this action that she was the sole proprietor at that time of Sound Research Production Company. She must, therefore, at the time the contract between the parties was agreed have been fully aware of every detail of that agreement and the terms upon which payments against invoices were to be made. It would be artificial to argue either ignorance of the terms of payment or a non-acceptance of them in the light of the duality of her role in this matter. In furtherance of that agreement, she clearly caused all but the last invoice to be raised against Sound Research Production Company and that last invoice was clearly raised on the same terms as those which proceeded it. I am further satisfied that I am entitled to rely upon the sums set out on the face of each invoice to prove the amount owed and that in the circumstances of this case quantum of any of the sums claimed is not a triable issue.

11. In the particular and peculiar circumstances of this case, I can see no triable issue which exists in respect of the principal sum.

12. Mr Kwok further argues that there is no claim in the Statement of Claim that in the agreement made in early December 1990 there is a triable issue as to whether ther was agreement for the payment of a sum of 2 1/2 % per month contract interest on unpaid invoices. He further argues that to later import such an agreement by way of a statement on the face of the invoices is to seek to vary the terms of the agreement between the parties and that if that is the case, the variation has not been pleaded, and that no proper claim subsists in respect of the contract interest and that the matter should go to trial on that issue.

13. I do not agree.

14. The undisputed facts in this case are that very soon after the agreement was made in December 1994, the 1st defendant, Miss Song, was, on behalf of the plaintiff, causing to be issued to Sound Research Production Company of which she claimed at that time to be sole proprietor, invoices including a claim for 2 1/2 % interest on a monthly basis upon unpaid sums.

15. In the circumstances of the manner of the issue of these invoices, I cannot see that it can be argued that she was not in her capacity as sole proprietor of Sound Research Production Company as well as the account executive in charge of the work being done by the respondent for Sound Research production Company fully aware of the terms for payment of sums due to the respondent and party to an agreement from the beginning of thye dealings between the parties that invoices should be raised on the terms and the conditions stated on the face of those invoices.

16. Accordingly I find that there is no triable issue in respect of the claim for contract interest and that this appeal in respect of both the principal sum and the contract interest fails and judgment is entered for the plaintiff against the 1st Defendant, the appellant herein, upon the same terms as that entered by Master Jennings on 10^th June 1996. The costs of this appeal are for the Plaintiff/respondent in any event.

Representation:

Mr Kenneth Kwok, S.C. and Mr Bernard Mak, inst by M/s Philip Pang & Co. for 1^st Defendant/Appellant

Mr Gordon Fisher, inst by M/s Holman, Fenwich & Willan, for Plaintiff/Respondent