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 FIRST INSTANCE ACTION NO. 2075 OF 2006 ------------------------------ BETWEEN
------------------------------ Before : Hon Suffiad J in Court Dates of Hearing : 4-5 December 2007 Date of Judgment : 17 January 2008 ------------------------------ J U D G M E N T ------------------------------ 1.The plaintiffs brings this claim against the defendants claiming for US$200,000 being the purchase consideration agreed under a Memorandum of Agreement dated 18 September 2000 whereby it was agreed that the 2nd plaintiff would cease its business and transfer its business activities to the 2nd defendant for a purchase consideration of US$200,000. Background 2.It is not disputed that the 1st plaintiff is and was at all material times the majority shareholder and director of the 2nd plaintiff, and that the 2nd plaintiff, a company incorporated in Hong Kong, specialized in the production and distribution of leather goods before it ceased its leather business. 3.It is also not disputed that the 1st defendant is and was at all material times the majority shareholder and director of the 2nd defendant, being also a company incorporated in Hong Kong, and also specializing in the production and distribution of leather goods. 4.On 18 September 2000, a Memorandum of Agreement (“the Agreement”) was signed by the 1st plaintiff and the 1st defendant whereby it was agreed, inter alia, for the 2nd plaintiff to transfer its business activities to the 2nd defendant and that the 2nd plaintiff will cease trading. It was stated in the Agreement that in consideration for the transfer of business from the 2nd plaintiff to the 2nd defendant, a purchase consideration of US$200,000 would be paid by the 2nd defendant to the 2nd plaintiff. 5.It was an express term of the Agreement that the Chief Executive of the 2nd plaintiff, one Ms Giovanna Guerrera, who is the mother of the 1st plaintiff, will terminate her employment with the 2nd plaintiff and be employed as from 25 September 2000 by the 2nd defendant as its Chief Sales Executive. 6.The Agreement further provided for the purchase consideration to be paid in stages in the manner stated therein. I shall go into the terms of the payment clause, in particular the disputed parts of it, in greater detail later in this judgment. Plaintiff’s case 7.It is the plaintiff’s case that pursuant to the Agreement, the 2nd plaintiff did cease trading and did transfer all its business including its existing customers over to the 2nd defendant. 8.Moreover, the Chief Executive of the 2nd plaintiff, Ms Guerrera, did also terminate her employment with the 2nd plaintiff and became an employee of the 2nd defendant as its Chief Sales Executive as from 25 September 2000. 9.Ms Guerrera worked with the 2nd defendant until her termination by the 2nd defendant on 20 March 2002. 10.It is the plaintiff’s case that the 2nd plaintiff having performed its part of the bargain contained in the Agreement, the purchase consideration promised to be paid by the 2nd defendant to the 2nd plaintiff became due. 11.An invoice was issued by the 2nd plaintiff to the 2nd defendant dated 12 October 2005 claiming for the purchase consideration of US$200,000 but when no payment was forthcoming from the defendants, the Writ was issued in this case. The defence and counterclaim 12.The defendants had initially counterclaimed a number of reliefs against the plaintiffs. 13.At the start of the trial, I was informed by counsel for the defendants that the defendants will not be pursuing those reliefs sought in paragraphs 3 to 6 inclusive of the prayer for relief in the counterclaim. 14.In light of this concession, the defence and counterclaim which is now relied on can be summarized as follows :
The evidence, assessment thereof and finding of facts 15.For the plaintiffs, evidence was called from the 1st plaintiff and his mother, Ms Guerrera. 16.The evidence from the 1st plaintiff was that the Agreement was a home-made document, drafted by a friend of his. 17.After the Agreement was signed by him and the 1st defendant, the 1st defendant and his wife came to the 2nd plaintiff’s office and after looking through what the 1st defendant considered would be useful to him and the 2nd defendant in the transfer of business to the 2nd defendant, the 1st defendant picked out some samples, some files and office records as well as two computers of the 2nd plaintiff. All the items picked out by the 1st defendant were then packed into three boxes and were delivered to the office of the 2nd defendant by van arranged for by the 1st plaintiff. 18.Thereafter, the 1st plaintiff then ceased its leather business. Ms Guerrera transferred from being employed by the 2nd plaintiff to the employ of the 2nd defendant from 25 September 2000 as provided for by the Agreement. 19.It was also the 1st plaintiff’s evidence that the then existing clients of the 2nd plaintiff before the transfer of business were CP3, GN, Valigeria Roncato and Marianelli, all of whom had been transferred to the 2nd defendant. 20.The reason given by the 1st plaintiff for ceasing the leather business in the 2nd plaintiff and transferring it to the 2nd defendant was because by that time, he wanted to concentrate on his wine and beverage business full time and did not have sufficient time to deal with the leather business. 21.Because the Agreement had provided for the purchase price of US$200,000 to be paid in stages, in the manner stated therein by the sending of invoices to the 2nd defendant, when the 1st plaintiff was asked why he did not send any invoice to the 2nd defendant before September 2005, he explained that firstly, he was busy concentrating on his wine business and secondly, that he trusted the 1st defendant. Knowing that the 2nd defendant was a large and reputable company, he did not think that the defendants would not honour their end of the bargain. He also explained that at that time, the leather business was slow and not as good and therefore he was in no hurry to get paid the purchase price. However, later in 2005, when the 1st defendant indicated that he will not be paying the purchase consideration and was avoiding phone calls from the 1st plaintiff, he then got a solicitor friend to draft a letter dated 17 October 2005 and attached an Invoice dated 12 October 2005 for the US$200,000 which he then sent to the home of the 1st defendant chasing for the payment of the purchase consideration. It is also his evidence that he had also sent separately a similar invoice to the office of the 2nd defendant for the same purchase consideration. 22.Ms Giovanna Geurrera also gave evidence for the plaintiffs. 23.Her evidence was that she had transferred over to be employed by the 2nd defendant as provided for by the Agreement. 24.She further confirmed that the existing leather business of the 2nd plaintiff at the time of the Agreement was transferred to the 2nd defendant. 25.She confirmed that the then existing clients of the leather business of the 2nd plaintiff were as stated by the 1st plaintiff and that those clients were transferred to the 2nd defendant. 26.She gave evidence as to how her employment with the 2nd defendant came to be terminated. In short, because her room in the Hong Kong office of the 2nd defendant was taken over by another staff engaged by the 2nd defendant while she was stationed in Mainland China and when she returned to the Hong Kong office of the 2nd defendant she found that all her items in her room had been moved out of the room. This led to her losing her temper with personnel in the office of the 2nd defendant and the exchange of some harsh words with the 1st defendant resulting in her termination from the 2nd defendant after the refusal by the 1st defendant of a raise in her salary as requested by her. It is not necessary to go into the details of these incidents leading to her termination as it has little bearing, apart form the dismissal itself, of the issues in this case. This all happened in or about February or March 2002 and her termination of employment was dated 20 March 2002. 27.One other piece of evidence coming from Ms Guerrera which is significant to this case is that while she was the Chief Sales Executive for the time she was with the 2nd defendant, she was given the prices of the 2nd defendant for her to deal with and quote to clients in relation to leather goods and products but that she was not told how these prices were worked out nor was she told the production costs of the products manufactured by the 2nd defendant. 28.For the defendants, the 1st defendant alone gave evidence. 29.The first and main area of factual dispute from the evidence of the 1st defendant concerns what, if anything was transferred from the 2nd plaintiff to the 2nd defendant under the Agreement. 30.According to the 2nd defendant initially, nothing was transferred over to the 2nd defendant from the 2nd plaintiff. 31.He agreed that there was a visit by him and his wife to the office of the 2nd plaintiff after the Agreement had been signed but disputed wholly the evidence of the 1st plaintiff that anything had been transferred to the 2nd defendant. He went as far as to deny that any existing clients of the 2nd plaintiff had been transferred to the 2nd defendant. 32.As for the sample referred to by the 1st plaintiff, the evidence of the 1st defendant was that the 2nd plaintiff was not engaged in the business of selling leather products to its clients or customer, but rather cloth or rattan bags and for that reason, there was no purpose for him to acquire any sample from the office of the 2nd plaintiff, thus no samples were obtained. 33.He also denied that any office records or files were transferred from the plaintiff to the 2nd defendant. 34.In this respect, he only agreed that when Ms Guerrera started employment with the 2nd defendant, she had brought along a computer to the office of the 2nd defendant, but had taken that away with her when she left on the basis that it was her own personal computer. 35.However, in cross-examination, the stance taken by the 1st defendant changed somewhat. 36.He admitted that he had been told by the 1st plaintiff when he was in the office of the 2nd plaintiff that the existing clients of the 2nd plaintiff was GN, CP3, Valigeria Roncato and Marianelli, but that there was no documentation to substantiate what the 1st plaintiff had told him, nor did he ask for any such substantiation since at that time he accepted and believed what was told to him by the 1st plaintiff. 37.However, for the first nine months after Ms Guerrera started working with the 2nd defendant, no orders were placed by any of the so-called existing clients of the 2nd plaintiff allegedly transferred to the 2nd defendant, he then began to doubt whether they were the existing clients of the 2nd plaintiff which were transferred by the 2nd plaintiff to the 2nd defendant pursuant to the Agreement. 38.According to the 1st defendant, his real complaint therefore was the lack of any orders being placed by any of the so-called existing clients of the 2nd plaintiff after the 2nd plaintiff had purported to transfer its business over to the 2nd defendant. 39.When no invoice was forthcoming from the 2nd plaintiff for the payment of any part of the purchase consideration, at least up to September 2005, he took the view that all concerned had treated the Agreement as no longer binding or abandoned. 40.Another reason put forward by the 1st defendant in his refusal to pay the purchase consideration by the 2nd defendant to the 2nd plaintiff was that there were no orders generated by Ms Guerrera from the existing clients of the 2nd plaintiff since none had been transferred over to the 2nd defendant and therefore there was no obligation on the part of the 2nd defendant to make payment. 41.The 1st defendant agrees and accepts that all the transactions stated in the Invoice dated 12 October 2005 were transactions handled or generated by Ms Guerrera and which included transactions with GN, CP3, Valigeria Roncato and Marianelli. 42.In assessing the evidence adduced by the parties respectively, I found the 1st plaintiff and Ms Guerrera to be honest witnesses and doing their best to relate to the court what had happened over six years ago. I have no difficulty in accepting the evidence given by them. 43.On the other hand, I found the 1st defendant not to have been fully and entirely frank in his evidence. One example of this was that in his evidence in chief, he was content simply to say that the plaintiffs did not transfer any existing clients over to the 2nd defendant. It was only when he was questioned in cross-examination that the full picture emerged that he had been told by the 1st plaintiff that GN, CP3, Valigeria Roncato and Marianelli were the then existing clients of the 2nd plaintiff and at that time he had accepted what he was told by the 1st plaintiff, without asking for documentary confirmation, but that it was only later when after nine months of Ms Guerrera joining the 2nd defendant and not obtaining any orders from these clients that he had doubts as to what the 1st plaintiff told him about the then existing clients of the 2nd plaintiff. 44.The initial evidence from the 1st defendant therefore painted a very different picture and greatly affects the reliability of the 1st defendant’s evidence even accepting that his evidence in this respect does not go so far as to be an outright lie. 45.Moreover, I cannot believe the 1st defendant’s evidence that no office files, records or samples were transferred by the 2nd plaintiff to the 2nd defendant, particularly after he had been told who the then existing clients of the 2nd plaintiff were. 46.From his later admissions in his evidence that he had been told by the 1st plaintiff that GN, CP3, Valigeria Roncato and Marianelli being the then clients of the 2nd plaintiff and the fact that the Invoice dated 12 October 2005 showed that there were transactions carried out between the 2nd defendant and those clients generated through Ms Geurrera, it can hardly be believed that Ms Guerrera would have transferred her employment over to the 2nd defendant without bringing along any office records or files to facilitate her in carrying out business with those clients transferred over to the 2nd defendant from the 2nd plaintiff. 47.I also do not accept the evidence of the 1st defendant that no samples were transferred over to the 2nd defendant. The reason given by him for so saying was that the business which the 2nd plaintiff was dealing in involved only cloth bags and rattan bags, thus being different from the leather business which the 2nd defendant was engaged in and therefore the samples from the 2nd plaintiff was of no use to the 2nd defendant. 48.In so saying, the 1st defendant has obviously overlooked the fact that in the Agreement signed by him, the recital of that Agreement states :
49.Furthermore, the very purpose of entering into the Agreement was for the 2nd defendant to take over the leather business of the 2nd plaintiff, in the words of Mr Alder, counsel for the plaintiffs, the defendants were purchasing a quick entry into the Italian market. 50.On the evidence before me, I therefore make the following findings on the disputed issues of fact between the parties :
51.Upon the facts as found, I shall deal with the various issues in dispute between the parties and which concern the proper construction to be put on the terms of the Agreement. Parties to the Agreement 52.The Agreement was signed by the 1st plaintiff and the 1st defendant. Upon the wording of the Agreement it would appear that both of them signed the Agreement in their individual capacity since there was nothing on the wording used in the Agreement to suggest that they had entered the Agreement “for or on behalf of” the 2nd plaintiff and the 2nd defendant respectively. 53.This has given rise to the contention by the defendants that the Agreement was only entered into between the 1st plaintiff and the 1st defendant in their personal capacity and that the 2nd defendant was not a party to the Agreement, therefore the 2nd defendant cannot be liable to the plaintiffs in so far as the claim by them herein is concerned. 54.On the other hand it is contended by the plaintiffs that all four parties, namely, the 1st and 2nd plaintiffs as well as the 1st and 2nd defendants were parties to the Agreement. The fallback position of the plaintiffs is that the 1st plaintiff and the 1st defendant were signing as agents of the 2nd plaintiff and 2nd defendant respectively, such that the 2nd plaintiff and 2nd defendant were the parties to the Agreement. 55.In construing the Agreement on this issue, I look at the Agreement as a whole and more importantly the contents of the Agreement as to the duties and the obligations intended to be created thereunder. 56.In this respect, the relevant duties and obligation under the Agreement can be summarized as follows :
57.It can be seen immediately that the obligations and duties contemplated by the Agreement was essentially for the 2nd plaintiff to cease its business and to transfer its business activities including its customers to the 2nd defendant. Moreover, the payment of the purchase consideration was to be by the 2nd defendant to the 2nd plaintiff. In this respect it should also be noted that the bulk of the obligations or duties under the Agreement fell upon the 2nd plaintiff (namely to cease its trading and to transfer its business activities to the 2nd defendant) and also upon the 2nd defendant to pay the purchase consideration to the 2nd plaintiff. 58.However, it should also be noted that under Clause (6) of the Agreement, an undertaking was given by the 1st defendant to indemnify the 1st and 2nd plaintiff for those matters stated therein. 59.The evidence in this case and the findings above also showed that the obligations and duties imposed on the 2nd plaintiff by the Agreement were performed by it in that it had ceased its business and had transferred such business over to the 2nd defendant. 60.Moreover, the 2nd defendant had also received the business transferred over to it by the 2nd plaintiff. Indeed when the 1st defendant gave evidence, he had no difficulty accepting that those transactions stated in the Invoice dated 12 October 2005 from the 2nd plaintiff to the 2nd defendant were transactions which had been transacted by the 2nd defendant. Moreover, Ms Guerrera did cease her employment with the 2nd plaintiff and did transfer over to be employed by the 2nd defendant as Chief Sales Executive for some 18 months until that employment was terminated by the 2nd defendant. 61.All this shows that the 2nd plaintiff had performed what it was obliged to perform under the Agreement and the 2nd defendant had accepted the benefit of such performance by the 2nd plaintiff, albeit that it has not made payment of the purchase consideration to the 2nd plaintiff. 62.In the circumstances it cannot be doubted that the 2nd plaintiff and the 2nd defendant must have been parties to the Agreement and considered themselves bound by it. Therefore the only logical construction of the Agreement, in so far as the parties thereto are concerned, must be that the 1st plaintiff and the 1st defendant had entered into the Agreement as the agents respectively for the 2nd plaintiff and the 2nd defendant. 63.In this respect, it should also be noted that the 1st plaintiff and the 1st defendant would have the necessary authority to bind the 2nd plaintiff and 2nd defendant respectively to the terms of the Agreement since there is no dispute that at all material times they were respectively the directors of the 2nd plaintiff and 2nd defendant. 64.Furthermore, Clause (6) of the Agreement also shows that the 1st defendant gave an undertaking to both the 1st plaintiff as well as the 2nd plaintiff. The presence of this clause and the undertaking given would strongly suggest that the 1st plaintiff and the 1st defendant were both also parties to this Agreement in their individual capacity. 65.For the above reasons therefore, I have come to the conclusion that on the proper construction of it, the Agreement was signed by the 1st plaintiff and the 1st defendant as agents on behalf of the 2nd plaintiff and the 2nd defendant respectively in their respective capacities as directors thereof as well as in their own individual capacities. Payment clause of the Agreement 66.The second area of dispute between the parties involving the construction of the Agreement relates to the terms of payment therein contained in Clause (4) which reads as follows :
67.What is clear from the above clause is that the purchase consideration was fixed at US$200,000. That amount of the purchase consideration was to be paid in stages. 68.What is not clear, and therefore the subject of dispute between the parties, is the formula as well as the application of it in the present case in calculating the stage payment. 69.That formula was worded in Clause (4) of the Agreement already cited above, the operative words being “… shall be made in stages of [the 2nd defendant] costs plus 10% handling charge (Max) for all orders…”. 70.The evidence given by the 1st plaintiff and which was ultimately agreed by the 1st defendant in cross-examination was that that formula was understood by both of them to mean the selling price of the 2nd defendant less the production costs plus 10% of such production costs as handling charge. 71.In the light of that evidence, in so far as the formula was concerned, there is therefore no difference between the parties, albeit that the wording of the Agreement did not fully or clearly spell this out which can only be due to poor drafting. 72.The second matter in dispute between the parties concerning this clause was whether those words in Clause (4) “for all orders generated by Ms Guerrera…” was confined only to orders generated from the existing customers of the 2nd plaintiff transferred over to the 2nd defendant (as submitted by the defendants) or whether those words extended to any orders generated by Ms Guerrera, even from new customers, on behalf of the 2nd defendant. 73.Looking at Recital A which expressly states that the 2nd plaintiff has established successful business relationships in Italy and the Europe market, and comparing that with the wording of Clause (4) where it says “…all orders generated by Ms. Guerrera as a result of sales and marketing efforts on behalf of [the 2nd defendant] in the European market, or from other customers located outside Europe” (emphasis added), there can be no doubt but that the parties intended ‘all orders generated by Ms. Guerrera’ to extend to orders whether from the existing customers of the 2nd plaintiff or from new customers generated by Ms Guerrera after moving over to the 2nd defendant, since it is quite obviously the case that at the time of the Agreement, the 2nd plaintiff only had business relationship within Italy and Europe as stated in Recital A. 74.That is the construction that I will place on Clause (4) of the Agreement. Application of the formula for stage payment in the present case 75.One of the defence raised by the defendants is that they are not obliged to pay the amount now claimed by the plaintiff or any part thereof as the obligation to pay has not yet accrued. 76.In this respect, my initial observation is that the amount of the purchase consideration agreed between the parties is a fixed amount of US$200,000 under the Agreement. In so far as that purchase consideration goes, there is no uncertainty about the amount. 77.It would also be correct to say that as a purchase consideration, that amount becomes due to the 2nd plaintiff upon its performing its part of the bargain as to transferring its business activities over to the 2nd plaintiff. 78.On the findings made above, the 2nd plaintiff has performed such obligations upon it. 79.It would follow therefore that the amount of the purchase consideration is due. 80.What has been further agreed between the parties, by way of the formula for payment in stages goes merely as to how and when the amount of the purchase consideration is to be paid. That is where the difficulty creeps in. 81.In that respect, it should at once be noted that there is simply a complete lack of evidence as to the production cost relating to the 2nd defendant’s products. 82.The evidence from the 1st plaintiff as to production costs was that he had no actual knowledge of the production costs relating to the 2nd defendant’s products since it was a matter entirely within the knowledge of the 2nd defendant and not privy to him. 83.When the 1st plaintiff was asked how it was that he had hoped to invoice the 2nd defendant for the stage payments as contemplated by the payment clause in the Agreement since he did not know the production cost of the 2nd defendant to enable him to calculate such stage payment, his answer was simply that he trusted the 1st defendant to the extent that he relied entirely on the 1st defendant to provide the production cost relating to the 2nd defendant’s products when it came to calculating the stage payments. 84.The only evidence which the 1st plaintiff could give with reference to production costs is that generally speaking, production costs in relation to leather products would be about 60% of the selling price. It would appear therefore that it was on this understanding by him that the formula for the stage payment was agreed upon, giving some margin for the further 10% of the production costs to be treated as handling charge. 85.The evidence from Ms Guerrera when asked whether she was aware of the production costs of the 2nd defendant’s products during the time she worked at the 2nd defendant’s, was that she was never given the figures for the production costs of the 2nd defendant’s products. She was only given the price lists in respect of the selling prices to be quoted to the various clients for the different products. 86.That evidence of Ms Guerrera is wholly disputed by the 1st defendant who says in no uncertain term that he made sure that Ms Guerrera was taught how to calculate the selling prices of the various products of the 2nd defendant in particular being told the production costs of the various products of the 2nd defendant. 87.I have no hesitation in accepting the evidence of Ms Guerrera in this respect for the following reason. 88.If Ms Guerrera knew of the production costs of the 2nd defendant, there can be no good reason why such production costs would not have been included in the Invoice dated 12 October 2005 such as to properly calculate the amount of the stage payments which the 2nd plaintiff was claiming from the 2nd defendant since it is not disputed that that Invoice was prepared from Pro-forma invoices passed over by Ms Guerrera to the 1st plaintiff. In other words, if she was aware of the production costs used by the 2nd defendant for its products, she would surely have passed on the same information to the 1st plaintiff for him to properly prepare the Invoice in which he claims the US$200,000 from the 2nd defendant. 89.The fact that the production costs was not reflected in the Invoice dated 12 October 2005 supports Ms Guerrera’s evidence that she did not know the production costs relating to the 2nd defendant’s products while she was employed there. 90.The other piece of evidence which is relevant to this issue is the contents of the Invoice dated 12 October. The contents of that invoice has been accepted by the 1st defendant as showing orders or transactions which were handled or generated by Ms Guerrera when she was with the 2nd defendant. The total amount of those transactions stated in that Invoice comes to US$1,425,252.81. 91.No concrete figures have been provided at all by the defendants in evidence during the trial relating to the production costs of the 2nd defendant in relation to those transactions stated in that Invoice. 92.All that has been done by the defendants was to put the plaintiff to strict prove of its claim in particular the calculation for payment. In that respect it was the submission of the defendants that the “production costs” contemplated by the formula for the stage payments included all sorts of overhead expenses and that the plaintiffs have failed to prove its entitlement to the amount claimed or any part of it since the plaintiff have not adduced any evidence in respect of production costs in calculating the amounts of the stage payments. 93.In the absence of any evidence as to the production costs put forward by the 2nd defendant relating to those transactions stated in the Invoice dated 12 October 2005, I am left only with the evidence of the 1st plaintiff that in general the production costs would be about 60% of the selling price, the total selling price of US$1,425,252.81 as stated in that Invoice would indicate that even if the production costs of the products, the subject of those transactions, were as high as 78% of the selling price, and even adding a further 10% to such production costs by way of handling charge, that would still be sufficient to generate the US$200,000 as being the stage payments under the Agreement claimed by the plaintiffs. 94.Therefore the conclusion which I have reached is that the US$200,000 is due to the 2nd plaintiff upon its fulfilling its obligations under the Agreement. 95.If I should be wrong in so concluding, then for the reasons given above, I am satisfied that the 2nd plaintiff has established on balance the liability of the 2nd defendant for the amount of US$200,000 claimed pursuant to the formula for stage payment under Clause (4) of the Agreement. Abandonment as a defence 96.In the light of my findings above, in particular that the 2nd plaintiff has performed its part of the Agreement in transferring its business activities to the 2nd defendant, this defence of abandonment cannot succeed. 97.The present case is a far cry from those cases where an agreement has been entered into between parties but nothing has been done by either party in discharge of their obligations such that both must be taken to have abandoned the agreement and their obligations thereunder. 98.The only thing that can be said in the present case is that the 2nd plaintiff took a longer time than it should have to chase for the purchase consideration after having fulfilled its part of the bargain under the Agreement. 99.On the findings made above, I reject the defence of abandonment. Defence of misrepresentation 100.On the findings of fact made by me above, the allegation by the defendants of misrepresentation by the 1st plaintiff in respect of the then existing clients of the 2nd plaintiff is simply not made out. Conclusion on liability 101.The claim brought by the plaintiffs is for the purchase consideration of US$200,000. 102.Pursuant to the Agreement, it is clear enough from its wording that only the 2nd defendant is liable to pay the purchase consideration. It is also clear from the wording of the Agreement that only the 2nd plaintiff is entitled to be paid the purchase consideration. 103.For the reasons given, there will be judgment in favour of the 2nd plaintiff against the 2nd defendant for the sum of US$200,000 with interest from the date of Writ until judgment at 8% and thereafter at judgment rate. 104.The plaintiffs’ claim against the 1st defendant is dismissed. 105.The defendants’ counterclaim is also dismissed. Cost (order nisi) 106.There will be the following cost order nisi: 107.The 2nd defendant is to pay the cost of the action in so far as that relates to the 2nd plaintiff both in respect of the claim and for defending the counterclaim which has now been dismissed. 108.There will be no order as to costs in relation to the 1st plaintiff both in relation to the claim by the plaintiffs and for defending the counterclaim of the defendants. 109.There will also be no order as to cost in relation to the 1st defendant both in respect of the claim by the plaintiffs and also in respect of the counterclaim of the defendants.
Mr Edward Alder, instructed by Messrs Laracy Gall, for the 1st and 2nd Plaintiffs Mr Sean Fang, instructed by Messrs Tai, Mak & Partners, for the 1st and 2nd Defendants |
Further hearings and rulings under HCA 2075/2006