Lily Fenn & Partners (A Firm) v. Ng Wai Hin, Jacky t/a Jacky Ng & Co.

DCCJ4077/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4077 OF 2009

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BETWEEN

Before: Deputy District Judge Robert Pang in Chambers (Open to Public)

Date of Hearing:  15 January 2010

Date of Delivery of Ruling:  15 January 2010

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R U L I N G

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1.The defendant applies for summary judgment against the plaintiff on its counter-claim.

2.Due to the nature of this case and the matters raised by Mr Lam in his submissions on liability, I do not intend to go at any length into my reasons for decision on liability. I think it is better to leave matters unsaid.

3.Suffice to say though, however, that I have carefully considered all the evidence and submissions of counsel, and having so considered, I give summary judgment on the question of liability to the defendant.

4.I grant conditional leave to defend to the plaintiff on the question of quantum only. The condition is that the plaintiff pay into the court the sum of $139,200 within 14 days, failing which, judgment shall be entered against the plaintiff for the whole sum of $139,200 with interest at 1 per cent above the best lending rate published by HSBC Limited from time to time and costs.

5.The reason I am giving conditional leave only is that despite the threshold onus on the plaintiff to raise a triable issue, and even on a triable issue on the question of quantum, no evidence has been filed by the plaintiff on this issue, although there has been some mention of certain rules of thumb that emanated from the Bar table.

6.However, as rightly pointed out by Mr Lam, the total profit cost in the bill upon which this action is based is only some $197,300-odd whereas the sum of $139,200 claimed by the defendant would seem to be, on the face of it, slightly disproportionate. And on that basis, I make an order that the plaintiff have conditional leave to defend on the issue of quantum only.

(Discussions re directions on quantum, striking out plaintiff’s claim and costs)

7.Judgment on liability to the defendant on its counter-claim. There will be leave to the plaintiff to defend the counter-claim on the issue of quantum only; conditional upon payment into court of the sum of $139,200 within 14 days of this order, failing which, judgment shall be entered against the plaintiff for the whole sum of $139,200 with interest at 1 per cent above the best lending rate published from time to time by the HSBC Limited and costs of the action.

8.The, plaintiff’s claim be struck out, pursuant to Order 18 rule 19. The costs of this application including costs of today including costs for summary judgment and striking out be to the defendant assessed on a gross sum basis at $50,000.

Mr Douglas T Y Lam, instructed by Messrs V Hau & Chow, for the Plaintiff

Mr Tony T L Ko, instructed by Ip Kwan & Co., for the Defendant.