Wong Wai Lun and Another v. Tam Luen Wai
Read the full judgment text of DCCJ 6826/2003 on BabelCite. This District Court judgment.
1. This is the Plaintiffs’ (“Ps”) application for summary judgment against the Defendant (“D”).
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DCCJ 6826/2003 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 6826 OF 2003 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge J. Ko in Chambers Date of Hearing: 5th October 2005 Date of Handing Down Judgment: 9th December 2005 ______________________ J U D G M E N T ______________________ 1.This is the Plaintiffs’ (“Ps”) application for summary judgment against the Defendant (“D”). 2.Ps carry on business under 2 trade names, namely, Tion Engineering and Tion Cleaning Co. Tion Engineering is a contractor for, inter alia, repair and maintenance of building facilities and services. Tion Cleaning Co. is a contractor for cleaning works and services. D carries on the business of management of buildings and maintenance of common parts and facilities of buildings. 3.Ps’ claim is for $186,563 being the aggregate of the sums due under various invoices for work done and material supplied (“Disputed Invoices”) and/or the maintenance contract dated 28th May 2003 (“Maintenance Contract”). 4.D puts forward 2 lines of defence:
Whether the work had been done and the material had been supplied? 5.Ms. Sit, counsel for D, observes that Ps’ case is based on documents which D has stated were never in its possession. As such, D’s approach in establishing a real or bona fide defence will be focused on attacking the credibility of Ps’ evidence. In other words, D challenges the authenticity of the Disputed Invoices and the Maintenance Contract. 6.D is challenging the Disputed Invoices and the Maintenance Contract on 2 fronts:
(A) Whether the Disputed Invoices are at variance with D’s standard practice? 7.It is D’s case that the Disputed Invoices and the Maintenance Contract are at variance with D’s standard practice in the following regards:
(A1) No quotation, completion form or delivery note? 8.According to Ng Che Ping (“Ng”), the Chief Property Manager of D, there exists a standard practice of D known to all staff of Cheung’s level that if D intends to instruct a contractor to carry out any work or a supplier to supply any material, D’s staff would first ask the contractor or supplier to provide a quotation setting out the price. When such quotation is accepted, there would usually be a purchase order or a written confirmationfrom D. Upon completion of the work, the contractor would issue a completion form. Similarly, the supplier would issue a delivery note upon the supply of the materials. D’s staff would then sign on the completion form or the delivery note. Thereafter, the contractor or supplier would issue an invoice for D’s settlement. Tam Yiu Cho (“Tam”), the Managing Director of D, has also filed an affirmation to confirm such standard practice. 9.Ng and Tam have both exhibited documents in their affirmations purportedly to support their alleged standard practice. 10.Ng has produced the following documents in Exhibit “NCP-2” purported to evidence such practice. He even alleges that such documents are commonly used in the trade.
11.What is so surprising from these documents is that they do not in fact support Ng’s contention. They belong to different projects at different locations and for different times. There is no connection between these documents and they do not even begin to evidence such practice. 12.Tam has apparently found and exhibited in Exhibit “TYC-2” one complete set of quotation, completion note and invoice dated 2004 from Make Worth Electronic Eng Ltd in relation to the dismantling of the closed circuit television system at “香港北角堡壘街57-59號怡寶洋樓”. 13.In my view, Exhibit “TYC-2” must be looked at in its proper context. According to Ng, some 30 buildings are under the management of D at all material times. One can observe from Exhibit “NCP-2” produced by Ng that in managing these buildings, D engaged contractors to do all sorts of work, ranging from changing a 20-tonne water condensation tower to changing a door lock. Given D’s alleged standard practice in requiring its contractors/suppliers to invariably provide a quotation, completion form/delivery note and invoice, one would expect D to be able to come up with many complete sets of documents easily. 14.P took out the present application on 10th February 2004. Ng filed his first affirmation in opposition on 27th February 2004 exhibiting “NCP-2”. Directions were given on 1st March 2004 for P to file an affirmation in reply and this application for summary judgment was set down for argument. Originally, this application was scheduled to be argued on 31st May 2005. On 26th May 2005, however, D applied for and was granted leave to file further affirmation(s) and the hearing date of 31st May 2005 was vacated. Not until 28th July 2005 did Ng filed his second affirmation in opposition and Tam filed his affirmation in opposition exhibiting “TYC-2”. It has apparently taken D more than a year to come up with just one complete set of documents purporting to evidence something which D alleges to be a standard practice over the years and known to all staff! 15.The fact that D can only produce one single complete set of documents (i.e. a complete set of quotation, completion form/delivery note and invoice) in Exhibit “TYC-2” must also be contrasted with the fact that D has not produced the same (i.e. a complete set) for the transactions revealed in Exhibit “NCP-2” as well as those invoices of P exhibited in “WWL-16”. Tam has admitted in his affirmation that the work covered by the invoices exhibited in “WWL-16” had indeed been properly authorized and actually rendered by P. Where are the corresponding complete set of documents for these transactions? 16.In the premises, I find D’s alleged standard practice to be incredible. 17.Both Ng and Tam deposed to in their affirmation that D did not have notice or possession of the Disputed Invoices or the Maintenance Contract until after the present action was commenced. 18.Once stripped of its special context of purported variance with D’s standard practice, D’s allegation that it did not have notice or possession of the Disputed Invoices or the Management Contract until after the present action becomes mere assertion. 19.In any event, D’s above contention is contradicted by D’s then Assistant Operation Manager (i.e. Cheung), who has confirmed that he had indeed signed the Maintenance Contract and submitted the Disputed Invoices to D’s Accounts Department. 20.Given Cheung’s most damaging evidence, D has no choice but to seek to discredit him. However, what D can come up with in terms of evidence and argument is just the following:
21.In my view, it is neither here nor there that Cheung has filed an affirmation in support of Ps’ present application. D admits that Cheung had been its Assistant Operation Manager. It could very well be Cheung’s desire to tell the truth which prompted him to make the affirmation for Ps. 22.I also find it not surprising that Cheung would refer someone (even someone residing with 1st-named Plaintiff) to work for D. After all, Cheung had been D’s Assistant Operation Manager and Cheung apparently had dealings with Ps in discharge of his duties as confirmed by the undisputed invoices in “WWL-16”! This does not reflect badly on Cheung’s character. Quite to the contract, the fact that the person recommended by Cheung has been employed by D should reflect positively on Cheung. 23.Cheung has denied that he is the brother-in-law of Ps. 24.It is inaccurate for D to say that Ps’ business have dwindled drastically after Cheung left D’s employ is also insignificant. To start with, it is not known how significant is Ps’ business with D in relation to Ps’ overall business. What D can say at the most from the evidence is that Ps have not engaged the services of Ps as frequently as it used to be after Cheung left D’s employment. But this is quite normal after a change of personnel. What, perhaps, is more significant is that Cheung’s successor, Leung Wing Pong, has continued to use Ps’ service (see Bundle of Exhibits pp.47, 48, 50 and 51). D has certainly not challenged the credibility of Leung as well! 25.Lastly, the only incident that D can come up with to support its allegation that Cheung left D’s employ in acrimonious circumstances is that Ng and Tam were dissatisfied with the way Cheung handled the dismissal of a staff who had embezzled $45,000. It is not explained why it was dissatisfactory and there is certainly no allegation of any dishonorable conduct on the part of Cheung. Other than this, Ng and Tam can only showered wild accusations against Cheung without factual support. Significantly, it is not D’s case that Cheung was fired! 26.All in all, I find D’s challenge to Cheung’s credibility incredible! 27.It is trite law that mere assertion in an affidavit of a given situation does not, ipso facto, provide leave to defend, since the defendant must satisfy the court that he has a fair or reasonable probability of showing a real or bona fide defence (see Hong Kong Civil Procedure 2004, para.14/4/9). (A2) Signing and stamping of the Disputed Invoices at variance with D’s standard practice? 28.Ng observes in his affirmation that most of the Disputed Invoices were signed by Cheung and chopped with the company chop of D and that was totally inconsistent with the common practice of D. He says it is inconceivable that D’s staff would sign and put the company chop on a contractor’s invoice without stating any reason. He further says it is not clear whether the signature and the chop meant to signify Cheung’s acknowledgment of receipt of the Disputed Invoices only, or amounted to acceptance of the liability to pay. 29.If Ng were correct about such common practice, one would expect to see many examples of documents signed by D’s staff and affixed with D’s chop with the reason for signing and chopping stated thereon. However, when one turns to the many documentary exhibits in this case, one does not observe such a practice. 30.Perhaps, the only document which may be said to be close to Ng’s alleged practice is a letter dated 6th October 1999 from Hitachi Elevator Engineering Co (HK) Ltd in relation to the replacement of landing door sill of a lift at Belgian Bank Building (at Bundle of Exhibits p.171). At the location of the signature and D’s chop, there is the following statement:
31.Strictly speaking, the above document does not in fact evidence the alleged practice. The statement “For and on behalf of OWNER” has apparently been typewritten on the letter by the other party who drafted the letter for D’s staff’s signature and chop. 32.In my view, it would be of more significance if there is evidence of D’s staff actually stating the reason for signing and affixing D’s chop on a document. However, D has produced no such evidence. Quite to the contrary, the other exhibits produced by D actually points the other way!
33.In the premises, I find Ng’s alleged practice of stating reason when signing and chopping with D’s chop incredible. 34.As to why Cheung signed and chopped on the Disputed Invoices, Cheung has filed an affirmation confirming that he signed them to signify his approval of the work done and to authorize payment to Ps. I have already discussed D’s challenge to Cheung’s credibility hereinabove. Cheung’s evidence is also confirmed by the fact that Cheung’s successor (i.e. Leung Wing Pong) has also signed and affixed D’s chop on similar invoices of P and without stating anything (see Bundle of Exhibits pp.47, 48, 50 and 51). (A3) Cheung had no authority to enter into contracts with Ps on D’s behalf? 35.It is common ground that Cheung was the Assistant Operation Manager of D at the time of the Disputed Invoices and the Maintenance Contract. 36.Both Tam and Ng contend that it has been the open policy of D that only management staff of director level or above have the authority to enter into contracts on behalf of D with contractors for repairs, maintenance or cleaning works or for the supply of goods and materials in respect of those buildings under D’s management. As such, Cheung had no authority to enter into contracts with contractors. 37.In my view, Tam’s and Ng’s contention is not consistent with the invoices exhibited in Exhibit “WWL-16”. According to Ps, those invoices cover work done by Ps in relation to buildings managed by D. Three things can be observed from these invoices. First, these invoices cover the period between April and August 2003, and the Disputed Invoices cover the same period. Secondly, some of the buildings covered by these invoices, namely, Belgian Bank Building, Lilac Court, Mongkok Harbour Centre, Yun Kei Commercial Building, Nan Sang Building, are also covered by the Disputed Invoices. Thirdly, the nature of the works done under these invoices are similar to that of the Disputed Invoices. 38.Tam has only confirmed that the work covered by the invoices exhibited in Exhibit “WWL-16” had been properly authorized. No particulars, however, have been given as to how they were authorized and the identity of the one (amongst the management staff of D and of director level) who actually authorized those works! 39.In fact, D’s case in this regard is also not supported by those invoices in the Disputed Invoices signed and chopped by Cheung’s successor (i.e. Leung Wing Pong) (see Bundle of Exhibits pp.47, 48, 50 and 51). Leung has apparently continued to engage Ps’ service after Cheung has left the employment of D. It is not D’s case that Leung has also left D’s employment. Yet, there is no evidence from Leung confirming that he had indeed obtained authorization from management staff of D and of director level for those works. 40.Cheung has filed an affirmation to confirm that he had the authority to entered into the contracts covered by the Disputed Invoices. Again, reference is made to the discussion above concerning D’s challenge to Cheung’s credibility. 41.All in all, I find this aspect of D’s case a mere assertion at the most. (B) Whether the Disputed Invoices display fundamental weaknesses or inconsistencies? 42.Ms. Sit has tried very hard in her submission to challenge Ps’ case by pointing at alleged weaknesses or inconsistencies in the Disputed Invoices. She submits that if at the end of the day the court has doubt as to the validity of Ps’ case, the correct approach is to give unconditional leave to defend so that all the doubts can be ventilated at trial. 43.First, she submits that if the parties had indeed entered into the Maintenance Contract, it would be inconceivable for Ps to separately charge and D to pay for the works covered by Invoices TI-1019/2003, TI-1037/2003, TI-1038/2003, TI-1032/2003 and TI-1040/2003, which should have been within the scope of the Maintenance Contract. Having compared the nature of the works covered by these invoices (as described in the invoices) and the scope of work covered by the Maintenance Contract (see Bundle of Exhibits pp.10-12), I am not satisfied that they relate to the same work! 44.Secondly, she complains that Ps have purported to charge D for works within the scope of the Maintenance Contract by Invoices TI-1017/2003, TI-1018/2003, TI-1020/2003, TI-1024/2003, TI-1028/2003, TI-1029/2003, TI-1031/2003, TI-1036/2003, TI-1059/2003 and TI-1060/2003 in the Disputed Invoices. A closer look at the description in these invoices reveals that the work covered is not in fact within the scope of the Maintenance Contract! 45.Thirdly, she complains that Ps have double-charged D on many occasions. Having compared the description of work between Invoices TI-1008/2003 and TI-1006/2003 and between Invoices TI-1051/2003 and TI-1059/2003 carefully, I do not agree that there is any duplication. 46.What Ms. Sin has succeeded in this regard, perhaps, is to identify a possible duplication in Invoice TI-1029/2003 dated 17th June 2003 and Invoice TI-1036/2003 dated 21st June 2003. Both invoices were for the same description of work and for the same amount of $8,500 and the invoices were dated 4 days apart. In this regard, Mr. Hung (counsel for Ps) concedes that D should be entitled to unconditional leave to defend to the extent of this $8,500. 47.Fourthly, Ms. Sit has tried to cast doubt on the authenticity of the Disputed Invoices by reason of the way they were numbered. She submits that the haphazard way in which Ps appear to have issued the invoices indicates that they were not issued in respect of work actually done! She has apparently based her argument on the assumption that Ps would issue invoices immediately upon completion of the work involved. However, there is simply nothing in the evidence to ground such an assumption! 48.Lastly, Ms. Sit observes that Invoices TI-1079/2003 and TI-1085/2003 of the Disputed Invoices are neither signed nor stamped. Be that as it may, Cheung (D’s former Assistant Operation Manager) has already confirmed in his affirmation and by means of Exhibit “WWL-4” that such work had been done and the invoices received by him and he, in turn, submitted them to D’s Accounts Department. D has not succeeded in challenging Cheung’s credibility and I find this observation, whilst correctly made, of no significance. (C) Whether the work had been done and the material been supplied? 49.Ultimately, it is D’s case that the work alleged done and the material alleged supplied under the Disputed Invoices and/or the Maintenance Contract have not in fact been done or supplied. 50.In answering D’s above allegation, Ps and Cheung have both deposed at length as to how such work was done and such material supplied. In particular, it is noted that:
51.Notwithstanding the substantial evidence filed by Ps,
52.In these circumstances, I find that D’s allegation that the work alleged done and the material alleged supplied under the Disputed Invoices have not in fact been done or supplied mere assertion. Whether D entered into the contracts for works or materials as an agent for disclosed principals? 53.As an alternative defence, Ms. Sit argues that D has entered into the contracts for work/material covered by the Disputed Invoices as an agent for disclosed principals and did not incur personal liability thereon. 54.Notwithstanding the above allegation, it is most amazing that D has failed to file any evidence to substantiate this defence and to identify who those “disclosed principal” were. 55.In any event,
56.Even if D might be engaging Ps’ services for the benefit of the relevant incorporated owners or developer, that is not enough. There is simply nothing in this case to either expressly or impliedly negative D’s personal liability. 57.I therefore find this line of defence also a mere assertion. Conclusion 58.For the above reasons, I grant judgment in favour of Ps in the sum of $178,063 (i.e. $186,563-$8,500) together with interest thereon at judgment rate from the date of the writ until payment. I further grant unconditional leave to D to defend to the extent of $8,500. 59.Having regard to the fact that Ps recover judgment for a substantial part of their claim, I make a costs order nisi that the costs of this application including the costs reserved on 1st March 2004 be to Ps in any event with certificate for counsel.
Mr. Andy Hung instructed by Messrs. Knight & Co. for the Plaintiffs. Miss Eva Sit instructed by Messrs. Liu, Chan & Lam for the Defendant. |
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