Gian Andrea Pesci and Another v. Peter Miu and Another
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HCA2075/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL ACTION NO. 2075 OF 2006 --------------------- BETWEEN
---------------------- Before : Hon Suffiad J in Chambers Date of Hearing : 4 October 2007 Date of Judgment : 4 October 2007 ----------------------- J U D G M E N T ----------------------- 1.This is an appeal by the defendants against the order of Registrar Au Yeung given on 13 September this year refusing to order the plaintiffs to provide particulars sought by the defendants in their Request for Further and Better Particulars of the Statement of Claim filed on 21 August. BACKGROUND 2.The plaintiffs bring this claim against the defendants for breach of agreement. The plaintiffs’ case as pleaded is based wholly on a Memorandum of Agreement in writing dated 18 September 2000. That Memorandum of Agreement was not drafted by qualified lawyers. It appears to have been drafted by layman. The gist of that agreement was that all of the business of the 2nd plaintiff would be transferred to the 2nd defendant for a purchase consideration of US$200,000. However the Memorandum of Agreement was signed only by the 1st plaintiff and the 1st defendant. It is not disputed that the 1st plaintiff is the majority shareholder and director of the 2nd plaintiff and it is also not disputed that the 1st defendant is the majority shareholder and director of the 2nd defendant. 3.On the Memorandum of Agreement there is no express indication that the 1st plaintiff signed on behalf of the 2nd plaintiff nor that the 1st defendant signed on behalf of the 2nd defendant albeit that the terms contained therein made provisions for the 2nd plaintiff’s business to be transferred to the 2nd defendant and that the consideration of the US$200,000 would be paid by the 2nd defendant to the 2nd plaintiff, thereby imposing obligation on both the 2nd plaintiff and the 2nd defendant. 4.The parties have recognised that there are uncertainties with the Memorandum of Agreement. It is undoubtedly because of such uncertainties the plaintiffs have pleaded in the alternative, namely that the parties to the Memorandum of Agreement was the 1st plaintiff and/or the 2nd plaintiff on the one hand, with the 1st defendant and/or the 2nd defendant on the other hand being the other contracting parties. The particulars sought by the defendants 5.Particulars sought can be divided into several categories. These categories are as follows :
I shall deal with each of these categories in turn. (1) The parties to the agreement 6.Any uncertainty or ambiguity arising from this comes from the Memorandum of Agreement itself in the way that it has been drafted and worded. It is not the uncertainty or ambiguity in the pleadings. The resolution of those uncertainties would depend on the ultimate construction to be put on the Memorandum of Agreement by the court after hearing evidence. That being the case, this is not a matter for further and better particulars, rather being a matter of construction of the agreement at trial. If the purpose of the further and better particulars sought by the defendants is an attempt to restrict or limit the plaintiffs from pleading in the alternative, that cannot be right since the Rules of the High Court allows for pleading one’s case in the alternative so long as the facts relied on in the alternative case is not inconsistent with the facts relied on in the primary case. Here there is no inconsistency in the alternative plea by the plaintiffs since the whole of the plaintiffs’ case is founded on the Memorandum of Agreement and which will be produced in due course to the court by way of evidence. (2) The transfer of business 7.That is dealt with in clause 1 of the Memorandum of Agreement which reads :
8.Clause 4 of the same Memorandum of Agreement also touches on the transferring of business in that it makes provision for the purchase consideration of US$200,000 and the relevant part of that clause reads :
Although the transfer of business, being the plaintiffs’ part of the bargain, ought to have been pleaded in the Statement of Claim but was not, it has, to some extent, been remedied having been pleaded in paragraph 6 of the Reply, which reads :
9.The plaintiffs’ case is simply that it has transferred all its business to the 2nd defendant as per the Memorandum of Agreement. The fact of what has been transferred has now been pleaded in paragraph 6 of the Reply, anything more would be evidence. (3) The consideration 10.That is stated in clause 4 of the Memorandum of Agreement which I have already cited. What is sought by way of particulars in Request No. 2 is whether the 1st or the 2nd defendant has agreed to pay that consideration and where in the Memorandum of Agreement is that stated. What is sought by Request No. 4 is whether the 1st defendant was under an obligation to pay and whether the 1st plaintiff was entitled to the purchase consideration and where that is stated in the Memorandum of Agreement. 11.These requests are no more than a repetition of the earlier request relating to the parties to the agreement framed differently. For the same reasons given for the requests relating to the parties to the agreement, that is ultimately a matter to be resolved by construction of the agreement at trial, not a matter for further and better particulars. (4) Invoice — Request No.3 12.The invoice as relied on by the plaintiffs has been identified in paragraph 18 of the Reply as being the invoice dated 12 October 2005. Accordingly the particulars sought of the invoice has already been given albeit in the Reply and Defence to Counterclaim. (5) Loss and damage 13.The plaintiffs’ claim is simply for US$200,000, being the purchase consideration. No other claim has been made by the plaintiffs for damages of breach or for special damages. Even in paragraph 10 of the Statement of Claim where it makes a reference to loss and damage, that loss and damage is expressly stated to be “in the sum of US$200,000”. The request for particulars of loss and damage is therefore wholly unnecessary and unmeritorious. 14.Accordingly, on the substantive merits of this case, this appeal must be dismissed. 15.Having dismissed the appeal on its substantive merits it is quite unnecessary for me to go into the procedural points as well as the abuse of process submitted by the plaintiffs which is aimed at the same direction, namely for this appeal to be dismissed. The order therefore will be that this appeal is dismissed. [Submissions on Costs] Costs 16.Costs of this appeal to be paid by the defendants to the plaintiffs in any event.
Mr Edward Alder, instructed by Messrs Laracy Gall, for the 1st and 2nd Plaintiffs Mr Samuel Chan, instructed by Messrs Tai, Mak & Partners, for 1st and 2nd Defendants |
Further hearings and rulings under HCA 2075/2006