Austria Property Management Ltd v. The Incorporated Owners of Phase One Whampoa Estate

DCCJ 6500/ 2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6500 OF 2004

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BETWEEN

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JUDGMENT
ON PLAINTIFF’S APPLICATION
FOR SUMMARY JUDGMENT

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Coram: Deputy District Judge E. Yip in Chambers

Date of Hearing: 20 October 2005

Date of Judgment:  20 October 2005

Factual Background

1.By an agreement dated about 30 January 1997, the defendant engaged the plaintiff as its property manager.  The manager’s remuneration was $11,500 and utility maintenance cost was $5,300 per month.  The plaintiff would be reimbursed by the defendant of all expenses.  From January 1999 to October 2004, the defendant failed to pay such or part of such monthly sums to the plaintiff.  The agreement was terminated on or about 11 November 2004.   

2.By a Writ of Summons issued on 10 December 2004, the plaintiff claimed such sums.  By a Defence filed on 14 February 2005, the defendant denied the claim and in particular 17 of those monthly sums. 

3.On 3 May 2005, the plaintiff took out the present summons for summary judgment against the defendant.  In support of the summons, the plaintiff filed Ho Kit Ping’s affirmation dated 29 April 2005.  In response the defendant filed Sze Ngan Po’s affirmation dated 20 May 2005.  In reply the plaintiff filed Lau Ka Tung Rebecca’s affirmation dated 10 June 2005. 

The plaintiff’s Case

4.The plaintiff’s case rests on its accounting records (BD p. 127) as well as the defendant’s admission.  The latter took the form of the defendant’s CPA’s report and fax message to the defendant (BD pp. 81-87).  The CPA had admitted the liability and quantum put forward by the plaintiff after having expressly taken into account the defendant’s banking records.  The CPA’s admission was unequivocal subject to the rider that it would tender a fuller report would be tendered by mid-January 2004.  On 19 February 2004, an owners’ official special meeting was held for owners to discuss various matters, including the payment to a number of parties such as the plaintiff.  The CPA’s representative addressed the owners on how the payment was to be made. 

The defendant’s case

5.The defendant’s case is that sometime in late 2004, upon conviction of the incorporation’s treasurer for theft of the defendant’s money, the police returned documents they had seized from the defendant’s office for investigation of that case.  The defendant became aware of the existence of 17 such “receipts” (BD pp. 99-115), which could fully defend the plaintiff’s claim in respect of those 17 corresponding monthly sums allegedly due. 

The plaintiff’s view of the defendant’s case 

6.The plaintiff argues that it was for the defendant to show triable issues for defence.  On the issue of the plaintiff’s banking records, the defendant has raised nothing to query their truth and accuracy.  On the issue of the defendant’s admission, the defendant’s admission was not tentative as submitted by the defendant’s counsel though subject to the rider.  However, the anticipated mid-January 2004 fuller report is not mentioned by the defendant in the present summons.  A most reasonable inference from its absence is that no such report was in place to qualify or withdraw the admission.  Further, an owners’ official special meeting was held on 19 February 2004 where the CPA’s representative addressed the owners on how the payment was to be made.  This was another instance of clear admission on the part of the defendant. 

The defendant’s view of the plaintiff’s case

7.The defendant insists that the 17 “receipts” probably mean receipts, not just invoices.  They all bore the plaintiff’s company chop. The CPA’s report and fax were only tentative findings of liability and quantum.  The CPA’s representative’s admission at the owners’ official special meeting on 19 February 2004 was only internal housekeeping matters which could not assist the plaintiff or affect the defendant although the plaintiff was present, together with the defendant’s lawyer, a district board member, and a district officer.   As the plaintiff had made a mistake in the computation of the sums due under September and October 2004 earlier on though later amended, the entirety of the plaintiff’s computation was unreliable.          

Issues for this summons

8.I have to decide whether there are triable issues raised by the defendant.  I agree with the plaintiff’s submissions.  The defendant fails to show that the plaintiff’s records were untrue or unreliable, or that the admission on the part of the defendant was unreliable or subject to a rider, which might or might not bode well for the defendant.  I do not agree that because of a mistake, which was not major in any sense, in the computation of the sums due under September and October 2004 earlier on, the entirety of the plaintiff’s computation had become unreliable.  I give judgment to the plaintiff for the sum of $469,488.10 with costs and certificate for counsel.       

Dated this 20 October 2005

Mr. Kenneth LAM, instructed by M/s S.K. Lam, Alfred Chan & Co., for the Plaintiff

Miss. Joyce H. S. WU, instructed by M/s Huen & Partners, for Defendant