Chan, Leung & Cheung (A Firm) v. Pmm Technology Ltd
Read the full judgment text of DCCJ 4771/2003 on BabelCite. This District Court judgment.
1. This is a claim by the Plaintiff, a firm of solicitors for legal costs. The Plaintiff issued the bill of costs dated 13 th May 2002 to the Defendant. The bill of costs is at page 161 to 166 of the Plaintiff’s Bundle of Documents (PBD). The Defendant denies that it was the client of the Plaintiff or that it gave instructions to the Plaintiff for the transaction. There is no written retainer signed by the Defendant to the Plaintiff nor is there a memorandum of an oral retainer by the Defend
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DCCJ4771/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 4771 OF 2003 -------------------- BETWEEN
-------------------- Coram : Her Honour Judge C.B. Chan in Court Dates of Trial : 16th to 18th August 2004 Date of Handing down Judgment : 2nd November 2004 _____________ JUDGMENT _____________ 1.This is a claim by the Plaintiff, a firm of solicitors for legal costs. The Plaintiff issued the bill of costs dated 13th May 2002 to the Defendant. The bill of costs is at page 161 to 166 of the Plaintiff’s Bundle of Documents (PBD). The Defendant denies that it was the client of the Plaintiff or that it gave instructions to the Plaintiff for the transaction. There is no written retainer signed by the Defendant to the Plaintiff nor is there a memorandum of an oral retainer by the Defendant made by the Plaintiff’s then partner who was the partner handling the transactions involved in the bill of costs. Background 2.Mr. Kelvin Cheung was the former partner of the Plaintiff. He was the handling solicitor of the file KC-8942 of the Plaintiff wherein the work items in the bill is located. On the 23rd February 2002 Mr. Kelvin Cheung left the Plaintiff firm and ceased to be a partner of the firm after a partnership meeting on the 20th February 2002. Mr. Kelvin Cheung left the partnership under unhappy circumstances and allegations of misconduct and other misbehaviour subsequently ensued. Mr. Leung Shun Ying a partner of the Plaintiff firm, who gave evidence in this case, perused the files left by Mr. Kelvin Cheung amongst which is the file number KC-8942. Mr. Leung found that no bill has been issued in respect of the work in this file. He re-constructed this bill from the documents and records in the file with no direct input from Mr. Kelvin Cheung. It is not in dispute that Mr. Kelvin Cheung was closely related to his long-time clients Prosperity Machinery Manufactory Limited (“PMM”), Charles Oong, Chang Fang Fang, his wife, the late Frederick Oong deceased, Fan Chung Yen, his widow, Alexander Oong, his son. These are names that crop up in the bill and its supporting documents. Broadly speaking, PMM with its operating arm Hong Kong Scientific Engineering Company Limited (“HKSEC”) were owned by the brothers Mr. Charles Oong and the late Mr. Frederick Oong who died in 1995. The family members of the late Mr. Frederick Oong deceased had migrated to Canada. Mr. Charles Oong shouldered the responsibilities of the running of the businesses. He found the continued running of the business on his own to be a heavy burden. He requested the family members of the late Mr. Frederick Oong to return to Hong Kong to help him in the running of the business. However, they were not willing. The business was at a crossroad. The companies could either be wound up or could be continued and restructured. A scheme was proposed and in the making whereby the personal representatives of the estate of the late Mr. Frederick Oong sell their half share or interest in PMM and HKSEC to some long standing staff of PMM who would then help Mr. Charles Oong to shoulder the responsibilities of running the business. Throughout the negotiations and transaction the family of the late Mr. Frederick Oong had Canadian tax considerations. 3.By a letter dated 8th October 2003 at pages 68 – 69 of the Defendant’s Bundle of Documents (DBD), Mr. Kelvin Cheung stated that the Defendant was not the Plaintiff’s client. 4.Not having first hand information related to each of the items of costs claimed the Plaintiff had no precise information in relation to the purposes of many of the telephone conversations with parties such as Alex Oong and others. 5.The work focussed on the restructuring scheme in the midst of which various documents were drafted. These will be referred to hereunder. The Relevant Documents Prepared by the Defendant 6.The documents that have been prepared by Mr. Kelvin Cheung in respect of this file have been placed in the bundle. The Plaintiff’s Solicitors have prepared a summary of the purpose of these documents. They are helpful in showing the type of scheme of restructuring that had been proposed and the work involved. I set out the summary hereunder. First there is some background information related to the parties that is helpful. Background Information Related to the Parties and Their Interests (a) The Oong’s Interests 7.By two Trust Deeds created in 1997, a Ms. Chen became a trustee, holding 25,000 shares in Everlasting Resources Ltd. (“Everlasting”) and Unison Profits Ltd. (“Unison”) respectively, on trust for Charles Oong, Chang Fang Fang, Elizabeth Oong and Cleveland Oong as beneficiary. 8.By another Trust Deed created in the same year, a Mr. Liu became a trustee, holding 25,000 shares in Everlasting and Unison respectively, on trust for Fan Chin Yen, Alex Oong, Daniel Oong and Bruce Oong as beneficiary. (b) The BVI companies and the HK companies 9.Unison is the beneficial owner of PMM. Unison is registered in British Virgin Islands. PMM is registered in Hong Kong. 10.Everlasting is the beneficial owner of HKSEC. Everlasting is registered in British Virgin Islands. HKSEC is registered in Hong Kong. HKSEC further holds a Chinese investment in Dongguan. The said investment is run as a sole proprietorship under the name of Charles Oong. The actual beneficial interests of the Chinese investment are divided equally between Charles Oong and the estate of the late Frederick Oong. 11.Since 1993, Unison and Everlasting have arranged loans agreements in the region of about HK$16,000,000.00 to cover the operating loss of PMM and HKSEC. (c) The Purchasers 12.PMM Technology Limited (“PMM Technology”) was incorporated on 15 January 2001. The initial two subscribers were Charles Oong and Fung Chow Ming, a long term staff of PMM. (Evergreen Millenium Corp. (“Evergreen Millenium”), a BVI company owned by Charles Oong, controls 51% of PMM Technology, Fung Chow Ming (“Fung”), Chan Lai Nga (“Chan”), Lau Hi Lam (“Lau), Chow Kar Keung (“Chow”), Yip Tsz Kon (“Yip”) control 49%). (d) Lenders 13.Evergreen Millenium and Alex Oong have agreed to advance a loan of HK$9,300,000.00 to Purchasers to facilitate the acquisition. Parties have signed a Loan Agreement to this effect. (e) Borrower 14.PMM Technology, the new company to be set up, required to borrow money from the Lender to facilitate the acquisition. (f) Guarantors 15.Charles Oong and Fung Chau Ming (together with other employees) have executed a Deed of Guarantee in favour of Lenders. (g) Charge 16.Both PMM and HKSEC, in consideration of Lender’s agreeing to advance the loan, agreed to execute a Deed of Charge over all their assets in favour of the Lenders. Appraisal of the Documents Prepared (1) Sale and Purchase Agreement (p. 17- 45 of PBD) 17.Unison and Everlasting agree to sell and PMM Technology agrees to purchase, the shares of PMM and HKSEC, for a total consideration of HK$9,300,000.00. 18.Charles Oong signs on behalf of Unison, Everlasting, PMM, HKSEC and PMM Technology. 19.Charles Oong also signs on behalf of Evergreen Millenium as a Lender. Alex Oong did not sign as a Lender. 20.All Guarantors sign their name. (2) Supplemental Agreement For Sale and Purchase (p. 98 – 108 of PBD) 21.Unison and Everlasting agree to sell and PMM Technology agrees to purchase, the shares of PMM and HKSEC, for a total consideration of HK$9,300,000.00. 22.It amended the previous Sale and Purchase agreement, to the effect that the transaction shall not include any equities, loans etc. held in the name of HKSEC, or in the sole or joint name of Charles Oong and/or the late Frederic Oong and/or Fan Chin Yen. 23.It is agreed Charles Oong and Fan Chin Yen are to waive all shareholder/director loans to Unison and Everlasting. 24.It is agreed that Unison and Everlasting are to waive all previous shareholder/director loans to PMM and HKSEC. 25.Charles Oong signs on behalf of Unison, Everlasting, PMM, HKSEC and PMM Technology. 26.Charles Oong also signs on behalf of Evergreen Millenium as a Lender. Alex Oong did not sign as a Lender. 27.All Guarantors sign their name. (3) Deed of Vendor Undertaking (p. 109 – 115 of PBD) 28.It is not executed. The contents of this Undertaking are partly reflected in the Supplemental Sales and Purchase Agreement, in particular:
(4) Shareholder Agreement (p. 46 – 67 of PBD) 29.The shareholders of PMM Technology agree to the following holding distribution:
30.In consideration of Evergreen Millenium and Alex Oong agreeing to advance a loan to facilitate this purchase as Lenders, Charles Oong and Fung Chow Ming (together with other involved employees of PMM and HKSEC employees) agree to execute a Deed of Personal Guarantee in favour of Evergreen Millenium and Alex Oong. 31.It is agreed Evergreen Millenium will nominate 3 directors and Fung/Chan/Lau/Chow/Yip will nominate 3 directors. Both Charles Oong and Fung will be included in the Board of Directors. 32.Charles Oong signs on behalf of Evergreen Millenium. Fung/Chan/Lau/Chow/Yip all sign on their own behalf. (5) Loan Agreement (p. 68-85 of PBD) 33.Evergreen Millenium and Alex Oong as Lenders agree to advance a loan of HK$9,300,000.00 to PMM Technology as Borrower in its acquisition of shares in PMM and HKSEC. 34.Charles Oong signs on behalf of Evergreen Millenium. Alex Ong did not sign on his behalf as Lender. 35.Charles Oong signs on behalf of PMM Technology. 36.Charles Oong signs on behalf of PMM and HKSEC. 37.Fung/Chan/Lau/Chow/Yip all sign on their own behalf as Guarantors. (6) Deed of Guarantee (p.116-127 of PBD) 38.In consideration Evergreen Millenium and Alex Oong agreeing to advance a loan to facilitate PMM Technology’s acquisition of shares from PMM and HKSEC, Charles Oong and Fung/Chan/Lau/Chow/Yip all agree to guarantee the full repayment of PMM Technology loan as principal debtor. 39.They all sign on their own behalf. (7) Trust Deed (p.86-91 of PBD) 40.Kelvin Cheung to act as Trustee for PMM Technology, to hold 1 share in PMM. 41.Kelvin Cheung signs on behalf of himself. Charles Oong signs on behalf of PMM Technology. (8) Trust Deed (p.92-97 of PBD) 42.Charles Oong is to act as Trustee for HKSEC, to hold the share interests of the latter’s mainland business. 43.Charles Oong signs as Trustee. Fung Chow Ming signs on behalf of HKSEC. Kelvin Cheung evidenced the signing. (9) The (second) Agreement for Sale and Purchase (p. 129-158 of PBD) 44.Charles Oong and Fan Chin Yen agree to sell and PMM Technology agrees to purchase, the shares of Unison and Everlasting, for a total consideration of HK$9,300,000.00. 45.Both Charles Oong and Fan Chin Yen waive all previous loans to Unison and Everlasting. 46.Lenders are no longer a party to this contract. Instead, the Vendors agree that the Purchaser shall make payment by instalments. In return Charles Oong and Fung/Chan/Lau/Chow/Yip will execute a Deed of Personal Guarantee in favour of the Vendor, and, execute a charge over PMM and HKSEC’s asset in favour of Vendor. 47.Charles Oong signs on behalf of PMM Technology, Unison, Everlasting, PMM, HKSEC and Evergreen Millenium. All other parties named sign. 48.Alex Oong is no longer a party to this contract. Both the Loan Agreement and Deed of Guarantee no longer form this contract. The Plaintiff’s Pleaded Case 49.The Plaintiff’s pleaded case in the Statement of Claim is that the Plaintiff rendered services to the Defendant at the Defendant’s request. It was further stated in the Answer to the Request for Further & Better Particulars of the Statement of Claim dated 28th October 2003 that the Defendant became a client of the Plaintiff on or about 16th June 2001. The Defendant was made a client of the Plaintiff through oral instructions given by Mr. Charles Oong and Mr. Fung Chow Ming, the subscribers of the Defendant to Mr. Kelvin Cheung of the Plaintiff on or about 16th June 2001. It was clearly pleaded by the Plaintiff that there was an express oral retainer by the Defendant. It was not the pleaded case of the Plaintiff that there was a retainer by implication. At the close of the case the Plaintiff’s Counsel submitted in his final submission that the Court could imply a retainer by the Defendant from the acts of the parties. The Plaintiff’s Counsel invited the Court to look at the conduct of the parties and also the subject matter of the transaction in relation to the implication of a retainer. The Defendant’s Counsel submitted that no facts to support a finding of implied retainer was pleaded by the Plaintiff in the present case. It was therefore not appropriate for the Court to find an implied retainer as the Plaintiff’s case was pleaded on the basis of an express retainer. The Plaintiff’s Counsel by his supplemental final submission stated that it is not the Plaintiff’s case that a retainer should be implied. He clarified the Plaintiff’s case that reference to the implied retainer by himself in his closing submission was intended to invite the Court to adopt the approach of inferring the existence of an express retainer using all available evidence before the court, including the subject matter of the transaction and the conduct of the parties throughout. The Issue 50.The only issue of the case is, was there an express oral retainer as pleaded by the Plaintiff? The Evidence of the Plaintiff 51.The Plaintiff does not have direct evidence on the issue. They rely heavily on the contents of the letter dated 30th June 2001 as evidence that there was an oral retainer of Mr. Kelvin Cheung of the Plaintiff’s firm as then constituted to act for the Defendant. The Plaintiff also relies on the background information referred to aforesaid and other letters from Mr. Kelvin Cheung to the Defendant referred to hereunder as a basis from which an inference of oral retainer could be drawn. The Evidence of the Defendant 52.They rely on a dated 8th October 2003 from Mr. Kelvin Cheung referred to earlier that the Defendant had never retained him to act for them. 53.The Defendant called Mr. Fung Chow Ming to give evidence. With reference to the meeting on 16th June 2001, he stated that he attended the meeting on the 16th June 2001 as referred to in the letter dated 30th June 2001. He was invited by Mr.Charles Oong to attend the meeting. At the meeting he did not give oral instructions to Kelvin Cheung to act as solicitors for the Defendant. In his presence, no one asked Mr. Kelvin Cheung to act as the solicitor for the Defendant. He stated that Mr. Kelvin Cheung told them that there would be a conflict of interest for him to act for the Defendant. At the time he was doing some work for Mr. Charles Oong and at the same time he was assisting Mr. Alex Oong in handling some matters in the estate of the late Mr. Frederick Oong. 54.In relation to the transaction of the purchase of shares he, Mr. Fung had never taken any legal advice from Mr. Kelvin Cheung. He did not obtain any legal advice throughout in relation to his own interest as he had been working for PMM for so long. Mr. Charles Oong kept him informed of the progress of the whole transaction. He trusted Mr. Charles Oong. He was the addressee of the letter dated 30th June 2001 because he was the person in charge for the Sale & Purchase Agreement on behalf of the staff representatives of the purchasers. He stated that his understanding of para 1) in the letter is that the legal fees and disbursements in relation to the sale and purchase of the shares of the above companies shall be paid by the purchasers PMM Technology if the transaction went through. However the transaction actually fell through. As far as he understood, the terms were that if the transaction fell through the Defendant does not have to pay the legal fees and disbursements. He stated that he did not deal with the Vendor; Mr. Charles Oong handled the whole matter. 55.Under cross-examination he was referred to Clause 14 of the two Agreements for Sale and Purchase of Shares at pages 35 and 149 of PBD where it stated,
56.He stated that Mr. Kelvin Cheung did explain the whole Agreement to him. He agreed to this clause if the deal went through. If it was not successful, they could not charge the fees for preparation of the Agreement. He only knew that in relation to the drafting of the Agreement both sides had to pay if the transaction was successful. Was There an Express Retainer by the Defendant? 57.The Plaintiff’s Counsel in his Supplemental Final Submissions refer to paras. 99, 101, 102 and 103, Halsbury’s Laws of England, Vol. 44(1) (Fourth Edition Reissue), Solicitor, the pertinent part of which runs as follows:
58.He further submitted that the Plaintiff’s case relies on an express retainer, as evidenced by correspondence and numerous agreements. He stated that the fact that such an express oral retainer existed could be inferred from all the available evidence before the Court, such as correspondence and numerous agreements. 59.The most important evidence of an express retainer relied on is letter dated 30th June 2001 from Mr. Kelvin Cheung to Charles Oong, Chang Fang Fang, Fan Chin Yen, Alex Oong, Fung Chow Ming at page 12 of PBD. 60.The letter evidences a physical meeting on the 16th June 2001 at the office of Mr. Kelvin Cheung where Charles Oong, Fung Chow Ming, Miss Jenny, Mr. Lau and Mr. Chan were present. There was reference to telephone conversations with Alex Oong and Chang Fang Fang which supplemented the physical meeting. 61.At the meeting, the intention among all the parties for the sale and transfer of the shares and interest of and in the companies mentioned was confirmed. The letter refers to an agreement on the sharing of the legal fees. The para a) states,
62.The Plaintiff relies on the agreement related to payment of legal fees and disbursements in a). This is however not direct evidence of an oral retainer. 63.The last paragraph of the letter refers to legal advice having been given to the staff members of PMM Technology before 16th June 2001. This relates to past advice prior to 16th June 2001. This contradicts the evidence of Mr. Fung that Mr. Kelvin Cheung had not given legal advice to himself. However it relates to advice prior to the work for the sale and purchase of the shares in PMM and HKSEC etc. 64.Para b) of the letter shows that Mr. Kelvin Cheung acted in the setting up of PMM Technology and prepared various documentation and the Shareholders Agreement which had been referred to aforesaid and formed part of the bill herein as it appears to have been included in item 13 of the bill. Item 13 refers to “Drafting and preparing Shareholders’ Agreement (5 hrs)”. 65.From this letter it can be seen that Mr. Kelvin Cheung acted in relation to these matters,
66.In relation to para a) Mr. Kelven Cheung may have acted for either Vendor or Purchaser both. However the retainer in respect of each of these different projects undertaken by Mr. Kelvin Cheung may be different and separate. The items of work in para b) aforesaid was wholly to be paid by PMM Technology as it wholly relates to PMM Technology whereas it stated an agreement that work in para a) aforesaid for the sale and purchase of shares was to be paid by the Vendor and Purchaser in equal shares. It would have seemed that billing for each of the work items in para a), b) and d) would have been more conveniently set out in separate bills. Items of work in para b) should have been billed separately to reflect the intention that the work therein was to be wholly paid by PMM Technology. It would not have been convenient to include them in the bill for the sale and purchase of the shares of PMM and HKSEC etc. 67.Apart from reliance on the letter dated 30th June 2001, the Plaintiff’s Counsel in his conduct of the case drew attention to some communication between Mr. Kelvin Cheung and Mr. Fung as allegedly tending to show a relationship of solicitor and client as they allegedly showed that advice was given to and instructions sought by the Defendant. He cross-examined Mr. Fung on these communications referred to hereunder. 68.The Plaintiff’s Counsel referred Mr. Fung to the letter dated 11th July 2001 from Mr. Kelvin Cheung to Mr. Charles Oong, Madam Chang Fang Fang, and Mr. Fung Chow Ming representing the staff representative of the Purchasers is at pager 448 of PBD. The letter was headed PMM Technology. This letter requested information related to the directors of PMM Technology and also for PMM and HKSEC. It also suggests the names and composition for the Board of Directors. The first sentence refers to the acquisition of PMM by PMM Technology. The matters requested would seem to relate to the matters of the Shareholders Agreement contained in pages 46 to 67 of the PBD. Mr. Kelvin Cheung it would seem was acting for PMM Technology in relation to this. As could be seen in the letter dated 30th June 2001, this letter relates to the matters in para b) in that letter. This was a job project separately referred to by Mr. Kelvin Cheung and distinguished from work related to the sale and purchase of the shares of PMM and HKSEC etc. 69.The Plaintiff’s Counsel cross-examined Mr. Fung on a letter from Mr. Kelvin Cheung to Charles Oong, Chang Fang Fang and Fung Chow Ming, representing staff representatives of the purchasers, dated 12th July 2001 at page 456 of PBD. The letter is headed “PMM Technology Limited Acquisition of Shares and Shareholders Agreement”. The letter enclosed a draft Shareholders Agreement in respect of the PMM Technology. There is a proposition of the number of directors and the composition of the Board of Directors. Also for PMM there is a proposal for three directors. There is an explanation related to the choice of the 3 directors proposed. It is stated in the concluding sentence “If the above proposals are acceptable to you we will attend to execution of the same on Saturday”. This letter would seem again to refer to the Shareholders Agreement and related matters where Mr. Kelvin Cheung would seem to have been acting for PMM Technology as para b) of the letter dated 30 June 2001 would suggest. 70.The 3rd communication from Mr. Kelvin Cheung on which the Plaintiff’s Counsel cross-examined Mr. Fung is a fax message from Mr. Kelvin Cheung dated 19th December 2001 to Mr. Charles Oong, Madam Fan Chin Yen, Madam Chang Fang Fang, Mr. Alex Oong, Mr. Fung Chow Ming at page 496 of PBD. This Fax message states that it enclosed the revised Agreement for Sale and Purchase of the shares of the two BVI Companies, which hold and control PMM and HKSEC. It is stated that PMM Technology will be the purchaser of the shares of the two BVI companies. It is stated that he has revised the Agreement for Sale and Purchase and enclose the same for their comments and amendments. Their attention is drawn to the agreed monthly rent per square foot at Clause 8 with the comment that if there is a new agreement to let them know. It seems that in this letter comments were requested from both the vendors and purchasers of the shares in relation to the contents of the Agreement. This letter does relate to the sale and purchase of the shares. However inviting comments from one of the parties to the agreement does not necessarily imply a solicitor and client relationship. The same could be done by a Solicitor in his approach on behalf of his client to the opposite party who is not represented. In my view no inference could be drawn from this letter of a client and solicitor relationship between Mr. Kelvin Cheung and the Defendant in relation to the sale and purchase of shares of PMM, HKSEC etc. 71.Another communication referred to by the Plaintiff’s Counsel is a note of a telephone conversation between Mr. Kelvin Cheung and Mr. Fung on 12 July 2001 lasting 10 minutes on directors at page 453 of PBD. As the Shareholders Agreement and issues referred to in para b) relate also to directors, this communication could have come under that head of work. 72.Apart from the aforesaid communications there is no other communication which tended to show a solicitor and client relationship between the Plaintiff and the Defendant. 73.Para a) of the letter dated 30th June 2001 and Clause 14 of the Agreement for Sale and Purchase of Shares at pages 35 and 149 refer to an agreement that the costs of the agreement for sale and purchase of the shares should be paid in equal shares by the vendor and purchaser. It is not clear whether the agreement in para a) aforesaid was an agreement as between the parties or as between the parties and the Solicitors. The agreement made in Clause 14 of the Agreements referred to was made to all the parties in the sale and purchase agreement but not to the Plaintiff. The Plaintiff was not a party in the sale and purchase agreement and it has no privity to sue. An agreement to pay half of the legal fees of a transaction, on its own, would not in my view make the purchaser a client of Mr. Kelvin Cheung of the Plaintiff’s former firm. It is merely a fact to be considered in the context of all the circumstances. 74.Mr. Fung stated that Mr. Kelvin Cheung stated that the purchaser would only have to pay the costs of the sale and purchase were the purchase to go through. The purchase failed to go through as one of the vendors; Mr. Alex Oong failed to agree to the terms of the transaction and refused to go through with the scheme then constituted. It would seem unfair that under such circumstances the purchaser had to pay half or all of the legal costs as claimed herein for the sale and purchase. 75.Having regard to the purpose of the restructuring and the background of the case as referred to aforesaid, the driving force behind the restructuring must be from the Vendors who were at a crossroad. According to Mr. Fung they had two options, either to go into winding up or to restructure. This scheme devised to enable the employees to purchase 49% of the shares held by the estate of Frederick Oong would enable the business to continue with a shared responsibility of the new shareholders with Mr. Charles Oong. Further Charles Oong, Alex Oong, Chang Fang Fang, PMM, HKSEC and related companies have been long-term clients of Mr. Kelvin Cheung. It would seem that it would have been much more natural for Mr. Kelvin Cheung to be retained as the solicitor of the Vendor as they are his long-standing clients, when faced with a choice as to which client to represent when a conflict of interest arises between them. Mr. Fung stated that Mr. Kelvin Cheung informed him and the other purchasers that there was a conflict of interest between the Vendor and Purchaser and he could not represent both Vendor and Purchaser in the sale and purchase of the shares. There is nothing that leads me to find Mr. Fung’s evidence to be unbelievable. 76.The Plaintiff billed the work referred to in para a) and para b) in one bill to the Defendant. It was clearly stated in para a) that the Defendant was at most responsible for half of the costs for the work referred to therein. It would seem that the manner of drawing up this bill is not in the lines stated in para a) and b) of the letter dated 30th June 2001. 77.Not having Mr. Kelvin Cheung to give evidence of his intentions of the way in which he would bill the items of work done referred to in para a) and his rationale for billing the items in para b) in the letter dated 30th June 2001 separately, it is not easy to guess the intention of Mr. Kelvin Cheung. It would seem to me from reading the contents of the letter dated 30th June 2001 that it was the intention of Mr. Kelvin Cheung to treat the matters referred to in para b) of his aforesaid letter separately from the sale and purchase of the shares of PMM and HKSEC etc. I note the cloud of disrepute and suspicion that is being thrown over Mr. Kelvin Cheung. These are not issues before this Court and this Court should not be influenced by these allegations, which are not issues of this action. 78.Having considered all the evidence it seems to me that in the light of the denial of an express oral retainer having been given by the Defendant, in relation to the sale and purchase of the shares in PMM and HKSEC etc., there being no direct evidence of an oral express retainer, I am of the view that an inference of an express oral retainer by the Defendant could not be drawn. Neither could such an express retainer be inferred from the agreement by the vendor and purchaser to pay the legal costs of the sale and purchase of the shares equally, referred to in the letter dated 30th June 2001 and Clause 14 of the Agreements for Sale and Purchase of Shares at pages 35 and 149 of the PBD. There is no clear or direct evidence of a retainer. I find support for the position taken from a passage in Halsbury’s Laws of England, 4th Ed. Reissue Vol. 44 (1) at para 101 which states,
79.Having so found, I dismiss the claim with costs of the action to the Defendant to be taxed if not agreed with Certificate for Counsel.
Representation: Mr. Karl Keung instructed by Messrs. Edmund W.H. Chow & Co. for the Plaintiff. Mr. Raymond Fong instructed by Messrs. Fung Wong Ng & Lam for the Defendant. |