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

cacv 249/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 249 of 2006

(on appeal from DCCJ NO. 16078 of 2000)

BETWEEN

Before: Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing: 13 March 2007

Date of Judgment: 13 March 2007

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.This is an appeal from a judgment of Deputy District Court Judge S T Poon given on 13 April 2006. 

2.The claim in the case was very simple.  It was a claim by the Plaintiff, who is a financial consultant, and it is summarised in paragraph 5 of the re-amended statement of claim, that on or around 25 October 1999, the Plaintiff and the 1st Defendant and/or the 2nd Defendant, through Lina Chan and Nelson Wong, agreed, in a meeting held in the 1st Defendant’s and/or the 2nd Defendant’s office at Unit 11, 2nd Floor, Metro Centre, 32 Lam Hing Street, Kowloon Bay, Kowloon, that the Plaintiff’s fee for rendering his service to the Nichimen project was HK$300,000, which was to be paid by the 1st Defendant and/or the 2nd Defendant by four consecutive monthly instalments of HK$75,000 each, each instalment to be commenced on 1 December 1999.

3.In summary, the judge held in the Plaintiff’s favour.  He held that there was such an agreement and he held that it was made by the Plaintiff.  The nub of this appeal has been that the judge was wrong and that the judge should have held that the contract was not made on the Plaintiff’s behalf, but was made on behalf of a company which formerly existed, namely, Universal Gold Trading Company Limited, which has been referred to as “UGTCL”.

4.The Defendant denied, indeed, that there was any agreement and denied that the Plaintiff was, in any event, entitled to quantum meruit.  The judge’s finding of fact was quite simple.  He said: “I do not accept that there was an express discussion between the Plaintiff and Lau, as to the identity of the contracting party, nor do I accept that it was D1’s understanding that UGTCL was the contracting one.”  He went on to consider all the facts of the case.  He was well aware that, earlier, there had been correspondence on UGTCL’s notepaper, but he also took into account that the Plaintiff used a firm name which was UIS, which in effect was himself, because it was simply a trading name which he had registered.

5.Having considered all the evidence, he came to the very firm conclusion that he found as a fact that the contracting parties were the Plaintiff and the 1st Defendant.  Apart from anything else, he took into consideration when he said that, the fact that after the October meeting the correspondence between the parties by email was entirely consistent with the contract being made by the Plaintiff and the 1st Defendant and there had been no dissent by the 1st Defendant, or anybody on the 1st Defendant’s behalf, to the effect that it was not the Plaintiff that was contracting.

6.Another important factor, in my mind, was that Mr Lau, who was the managing director of the 1st Defendant, was not called as a witness, although there was a belated attempt to call him, but that was not until very much later in the conduct of the proceedings that any such attempt was made.  Furthermore, the judge was entitled to take into account that this argument as to the identity of the contracting party not being the Plaintiff was not taken until the case had proceeded for something in the order of 9 months.  The suggestion is made that this point was taken on the advice of counsel. 

7.Be that as it may, Mr Kwan, who has said everything he can on behalf of the 1st Defendant, was not able to draw this Court’s attention to any error which the judge made in his fact-finding; nor was he able to draw attention to any fact which the judge overlooked.  His argument really amounted to the point that he considered that the judge had failed to give sufficient weight to some of the facts which he considered were in his client’s interest, and gave overdue emphasis to other facts.  That is not a sound basis upon which any appeal on a question of fact can be brought in this Court.

8.In my view, this appeal falls to be dismissed, and probably with costs.

Hon Le Pichon JA:

9.I agree.

Hon Stone J:

10.I entirely agree with the judgment of the Vice-President. 

11.Stripped of rhetoric, the Appellants’ case on this appeal comes down to this: that if - which is denied - there is an October 1999 agreement, the learned judge below should have found the party to such agreement was UGTCL which, factually, had been struck off the register some years earlier.

12.For my part, despite his best efforts, Mr Kwan does not even get to first base in demonstrating that the learned judge below, who saw and heard the witnesses and considered all the evidence, was plainly wrong in his conclusions, thus leaving it open to this court to reopen the case and to reconsider the evidence and to draw such inferences therefrom as Mr Kwan might wish.

13.This appeal plainly must fail.

Mr Alexander Stock, instructed by Messrs Dibb Lupton Alsop, for the Plaintiff/Respondent

Mr Thomas T H Kwan, instructed by Messrs F. Zimmern & Co., for the 1st and 2nd Defendants/Appellants