Mvo Management Ltd v. The Incorporated Owners of Tak Shing Mansion
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HCA 2121 / 2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2121 OF 2009 ____________
Before: Hon Au J. in Chambers Date of Hearing: 11 June 2010 Date of Judgment: 11 June 2010 _______________ J U D G M E N T _______________ A. Introduction 1.This is the hearing of the Plaintiff’s application for summary judgment against the Defendant for the sum of HK$1,279,747.10 as service charges rendered under two service contracts for the period between July 1999 and September 2009. 2.The Plaintiff is a company providing building management services in Hong Kong. 3.The Defendant is the incorporated owners of Tak Shing Mansion. 4.There is no dispute that the Plaintiff had provided management services to Tak Shing Mansion for the relevant period under two service contracts respectively dated 1 July 1999 and 1 December 2002. For the present purposes, these two service contracts could be regarded as of almost identical terms. 5.During the relevant period of services, there has been a running account maintained by the Plaintiff as to what sums were still owed to it for its service charges and disbursements. 6.When the Plaintiff’s services came to an end in September 2009, it is the Plaintiff’s case that under the running account, it was still owed the sum of HK$1,279,747.10 for its services. 7.Despite demands and having failed to have the Defendant pay for the sum, the Plaintiff brought the present claim against the Defendant on the basis that the Defendant was a party to the service contracts. 8.The Plaintiff now seeks summary judgment, which is opposed by the Defendant. 9.As I will explain below, the core issue before me for the present purpose is a narrow one. That is whether on a proper construction of the service contracts, the Defendant Incorporated Owners was a party to them, or whether it entered into the contracts as agents for the owners of Tak Shing Mansion. B. The present application B1. Applicable principles 10.The principles applicable to summary judgment are well established. It is for the Defendant to show a triable defence which is not frivolous or moonshine. See: Hong Kong White Book 2010, paras14/4/2 – 14/4/9. B1. The Plaintiff’s claim 11.Reading from the pleadings, I am satisfied that the Plaintiff’s claim against the Defendant rests on the following alternative bases:
B3. The defences raised 12.At the hearing, Mr Zimmern for the Defendant pursues the main defence that the Defendant was not a party to the contracts but only signed them as agents for the owners of Tak Shing Mansion. His submissions run as follows:
13.Although the Defendant also raises in the pleading a partial defence that any parts of the claim for the sum incurred prior to 6 March 2003 are time barred, Mr Zimmern confirms (fairly so I think) that he is not pursuing this given that there is no evidence to challenge that there was a running account maintained. B4. Discussion 14.I am not persuaded that the defence raises any triable issues. I will explain below my reasons. 15.In relation to the Defendant’s main defence on not being a party to the contracts, it is of course necessary to look at the relevant parts of the contracts, which I quote as below:
16.Looking at the contracts as quoted above, it is important to note that:
17.In the premises, it looks objectively clear that the Defendant was identified as and intended to be the contracting party to the contracts. 18.However, it is noted that there are two definitions of the words “owners” in the contracts:
19.Seizing on these two different definitions, Mr Zimmern seeks to contend that when clause 2 says it was “the owners” who employ the Plaintiff, it was referring to those owners defined under clause 1 but not the Defendant itself. 20.With respect, I do not accept Mr Zimmern’s contentions on construction as arguable:
21.As a result, on the above point of construction alone, it is clear and I conclude that the Defendant entered into the contracts as principal but not as agent, and this defence does not raise any triable issues. C. The alternative bases of the claim 22.Given my above views on the primary basis of the claim and that the defence raised thereto, I do not find it necessary to deal with these alternative bases of the claim. 23.Suffice for me to say that I would not have given summary judgment under these alternative bases of the Plaintiff’s claim as their success should in my view depend on a trial of the facts said to be in support of these claims or involve complicated legal arguments. D. Conclusion 24.For the above reasons, the Defendant has failed to show any triable defence to the Plaintiff’s claim. 25.Although the Defendant does not admit the quantum of the claim in its pleading, it has not filed any evidence to challenge the claimed sum, which arises from the running account affirmed under the Plaintiff’s supporting affirmation. 26.I accept the Plaintiff’s evidence on quantum. 27.I therefore give summary judgment for the Plaintiff in the sum of HK$1,279,747.10. The Plaintiff is further entitled to interest on the judgment sum at the rate of 1% above the prime rate as from time to time quoted by HSBC from the date of the writ to today, and thereafter at judgment rate until full payment. 28.I further order that costs of the action and this application be to the Plaintiff to be taxed if not agreed.
Mr. Kenneth K.Y. LAM, instructed by Messrs S.K. Lam, Alfred Chan & Co., for Plaintiff. Mr. Richard ZIMMERN, instructed by Messrs Chan & Tsu, for Defendant. [1] This is raised in the Plaintiff’s Reply, of which I have given leave to file at the hearing. | |||||||||||||||||