Anthony Charles Desir v. Ajax Pong Machinery Leasing Ltd and Another

DCCJ 16078/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 16078 OF 2000

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BETWEEN

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Coram: Deputy District Judge S. T. Poon in Chambers (Open to public)

Date of Handing Down Decision: 30^th June 2006 

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DECISION

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1.The Plaintiff claimed for outstanding financial consultant fees of HK$300,000 against the Defendants.  In a judgment dated 13^th April 2006 (“the Judgment”), I ordered that judgment be entered against the Defendants with interest and costs.

2.The Defendants now seek leave to appeal against the Judgment and apply for a stay of execution pending appeal.

3.In the Judgment I found, inter alia, that :-

(a)    the Plaintiff was the contracting party of the consultancy agreement;

(b)   there was a binding agreement between the Plaintiff and the Defendantson 25^th October 1999 that the Defendants shall pay the Plaintiff a total amount of HK$300,000 by 4 installments;

(c)    as at the date of the October Agreement Nichimen agreed in principle the debt restructuring scheme with the Defendants; and

(d)   even if the Plaintiff failed in proving the agreement, the Plaintiff should be entitled to remunerations on quantum meruit in the amount of HK$300,000.     

4.It is against the above findings of fact that the Defendants propose to appeal.

5.There is no dispute that the proper test in considering whether to grant leave to appeal is the one set out in Smith v Coswroth Casting Processes Ltd [1997] 1 WLR 1539, that is, whether the applicant has a realistic prospect of success.

6.The proposed grounds of appeal relied on by the Defendants are arguments that have been fully advanced by them at trial.  Basically the Defendants are saying that I have come to a wrong conclusion in the light of all the evidence before me.

7.Mr. Stock, counsel for the Plaintiff in his submission referred me to the decision of the Court of Final Appeal in Ting Kwok Keung v. Tam Dick Yuen [2002] 1 HKC 601.  Bokhary PJ said at paragraph 42 the followings :-

“The question for the Court of Appeal is whether, even though it does not enjoy the advantages enjoyed by the trial judge who received the evidence at first-hand, it is nevertheless satisfied that his conclusion on the facts is plainly wrong.  The Court of Appeal should intervene if so satisfied.  But if not so satisfied, the Court of Appeal should defer to the trial judge’s conclusion even if in some doubt as to its correctness.”

8.On the other hand Mr. Kwan, counsel for the Defendants, relied on the oft-cited case of Benmax v Austin Motor Co Ltd [1955] 1 All ER 326 distinguishing the situation between findings on primary fact and findings of fact made by a process of inference.

9.Mr. Kwan sought to argue that my finding of the identity of the contracting party is not a finding of primary fact but one made by a process of inference. 

10.At trial, quite apart from the documentary evidence that Mr. Kwan invited the court to draw inference on, the Plaintiff and the Defendants had put forward positive oral evidence as to the parties’ intentions as to who the contracting party was.  Mr. Wong, a senior official of the Defendants testified that the Defendants intended to contract with Universal Gold Trading Co. Ltd (“UGTCL”) rather than the Plaintiff.  However, this part of his evidence has been rejected in the Judgment.

11.In my view, the finding that the Plaintiff was the contracting party is a finding of primary fact based upon all the evidence including the oral evidence from parties.  Unless the Defendants can show to the Court of Appeal that I was plainly wrong in concluding as such, this finding would not be disturbed.

12.In view of the relevant paragraphs setting out the reasons of the finding that the Plaintiff was the contracting party, I am not convinced that I was plainly wrong in coming to the conclusion. 

13.In relation to whether Nichimen had agreed in principle the debt restructuring scheme with the Defendants in October 1999, Mr. Kwan relied mainly on Mr. Homma’s evidence in his submission.  Mr. Kwan submitted that my finding is contrary to Mr. Homma’s evidence which had not been rejected in the Judgment. 

14.Although Mr. Homma’s evidence was not expressly rejected in the Judgment, I did find that Mr. Homma came to the negotiation “late”.  This finding means that Mr. Homma was not really involved at the initial stage when the Plaintiff had much participation in the project and Mr. Homma’s accounts on what happened during that time should not be relied upon.  Mr. Kwan’s complaint on this is unmeritorious.

15.In any event, this argument was framed as one relating to the October Agreement under the proposed grounds of appeal.  Given the fact that my findings as to what had happened in the October meeting is not challenged in any way under the proposed grounds of appeal, and without advancing any arguments on the issue of consideration, the relevance of this argument is questionable.

16.Lastly, as regard the finding on the issue of quantum meruit, I share the view of Mr. Stock that the Defendants are simply unable to demonstrate why as a matter of principle, in the light of the direct authority Cotronic (UK) Ltd v. Dezonie [1991] BCLC 721, quantum meruit should not be claimed.

17.Mr. Kwan argued that the Plaintiff continued to use UGTCL after he knew that it no longer exists that made him not coming with clean hands.  With respect, I do not think that this can make the present case anywhere different from the situation in Cotronic.  Quantum meruit is a relief restitutionary in nature based on the principle of unjust enrichment.  The fact that the Plaintiff was using what name for business is simply irrelevant to whether the Plaintiff had put in efforts and whether the Defendants had been unjustly enriched.

18.To conclude, I am of the view that the Defendants have no realistic prospect of success and are bound to fail in the appeal.  It follows that there is no reason to delay the Plaintiff from enjoying the fruits of his litigation.

19.The applications for leave to appeal and stay of execution is dismissed.  The interim stay of execution be lifted. 

20.Costs should follow the event. I make a costs order nisi that the Defendants do pay the costs of this application including the costs reserved to the Plaintiff with certificate of counsel, such costs are to be taxed if not agreed.  The order nisi shall be made absolute after 14 days from the date of handing down of this Decision.

21.As regard the sum paid in as security for the interim stay, since the Defendants have now failed in obtaining leave, I see no reason why this sum should not be paid out to the Plaintiff and I so order.

Mr. Alexander STOCK instructed by Messrs. Dibb Lupton Alsop for the Plaintiff.

Mr. Thomas T. H. KWAN instructed by Messrs. F. Zimmern & Co. for the Defendants.