Loy Thin Loy and Another v. Christie's Hong Kong Ltd and Another
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DCCJ 5432/2008 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 5432 OF 2008 ________________________
Before: His Hon Judge Leung in Court Date of Hearing: 25-28 October 2011 Date of Judgment: 7 May 2012 ________________________ J U D G M E N T ________________________ 1.This is the competing claim for a painting that was placed with the 1st defendant (“Christie’s”) for auction. Christie’s is a reputable international auction house. The plaintiff, Loy Thin Loy (“Loy”) and Try Nhuc Cuong (“Try”) in the name of Galerie New Star (“Galerie New Star”), was the consignor of the painting. The 2nd defendant (“Fan”) claims to be the owner of the painting. 2.Loy and Try, in the name of Galerie New Star, commenced the present action to recover the painting from Christie’s; and Fan was joined as a party. In view of the competing claims, Christie’s interpleaded. 3.The action against Christie’s has since been stayed. As directed by the court, the painting meanwhile remains in the custody of Christie’s subject to its reasonable charges and pending the final determination of the dispute as to which of Galerie New Star or Fan is the owner of the painting. BACKGROUND 4.What happened in the present case was somewhat unusual. As an overview, it could be said that certain aspects of parties’ cases cry out for explanation in the light of the documentary evidence, while certain aspects might remain vague even after trial. 5.What is clear is that central to the dispute was the involvement of Lau Thow-meng (or Lau Chee-ming or 劉自明) (“Lau”). Lau is an artist of Taiwanese origin and has been a resident in France for over a decade. 6.Fan has known Lau since about 1978 when they attended the same university in Taiwan. She was and still is a teacher. Try Nhuc Cuong (“Try”), a resident in Paris, and Loy Thin Loy (“Loy”), a Malaysian and apparently a Dato, came to know Lau in about 2004. 7.The painting in question is entitled “Echo Chaleureux” by the artist Chu Teh Chun dated 2005 (“the ‘05 Painting”). Both parties were given to understand that the ‘05 Painting was sourced from a gallery in Paris, France by the name of Galerie Patrice Trigano (“Trigano”). 8.On 17 August 2007, Lau first brought the ‘05 Painting to Christie’s in Hong Kong for auction. However the consignor of the ’05 Painting was neither Galerie New Star nor Fan but a Dr Mau Shing (“Mau”). There is no suggestion that Loy, Try or Fan knew Mau. 9.Nevertheless, on 2 October 2007, Mau gave instruction to Christie’s and signed a written confirmation of his agreement to transfer the ’05 Painting to Try for and on behalf of Galerie New Star. Try also collected the ’05 Painting from Christie’s on the same day. 10.Following that, on 22 October 2007, Try sent to Christie’s a fax clarifying that he and Loy were the only “shareholders” and lawful representatives of Galerie New Star. On behalf of Galerie New Star, Try also declared the cessation of all the co-operation and relationship with Lau with immediate effect. 11.On 30 November 2007, Loy came to deposit the ’05 Painting with Christie’s in Hong Kong again for auction or return. The consignor was Galerie New Star. 12.On 3 January 2008, Fan through her solicitors wrote to Christie’s asserting her ownership of the ’05 Painting. According to their letter, the ’05 Painting was supposed to be delivered by Lau to Christie’s for auction for and on her behalf. 13.Correspondence ensued between Christie’s and Loy as well as the solicitors for Fan in respect of the competing claims for the ’05 Painting. At the end of May 2008, Fan also reported the matter to the police; but the investigation conducted resulted in no further action. 14.On 28 July 2008, Galerie New Star through solicitors wrote to Christie’s demanding the return of the ’05 Painting in 7 days. Christie’s refused to release the ’05 Painting to either side until the court’s determination of the ownership of the painting. As mentioned, on 1 December 2008, Loy and Try commenced the present action against Christie’s. Application by Fan to be joined as a party and that by Christie’s to interplead followed. 15.The above background is not in dispute. THE DISPUTE 16.Both sides claim that they acquired the ’05 Painting through Lau. Loy and Try claim that they acquired the same in December 2006. Fan claims that she purchased it even earlier in February 2006. Whether what the parties allege is true and eventually which party is the rightful owner of the ’05 Painting becomes the major dispute to be determined. THE CASE OF GALERIE NEW STAR 17.Both Loy and Try gave evidence. According to them, they were collectors of the art works on their own. It was in about 2006 when they started their co-investment in buying and selling of paintings for profits. Galerie New Star was formed in Paris for such purpose. Loy and Try did not deal with the art galleries directly. It was Lau who acted as their agent in Paris sourcing paintings, liaising with art galleries and bringing paintings to Hong Kong for auction. 18.The practice was that Lau would from time to time offer paintings to Loy and Try for consideration. Prices were quoted and payment instructions given. Lau would request that payment be made by way of remittance to one of 3 destinations, namely, to Lau in Paris, to the bank account of the art gallery or more often the bank account of Fan in Hong Kong. In that sense, the money was remitted on account for the payment to be made upon conclusion of the deal. 19.In line with this practice, during the period between January and July 2006, Loy and Try have arranged remittance of a total sum of HK$980,000 and €238,500 to the account of Fan in Hong Kong for the purpose of paying for their acquisitions. During that period, Lau recommended the ’05 Painting to Loy and Try. Lau showed the photographs of the painting to Try in Paris and sent the same to Loy by way of email attachment in about September 2006. 20.It was in December 2006 when Loy and Try finally decided to buy the ’05 Painting. Upon that, Lau requested for remittance of payment of a sum of €60,000 for the purchase of the painting. For such purpose, Lau provided Loy with a written confirmation of the offer to sell the ’05 Painting, with particulars thereof, at the price of €60,000. The confirmation was issued and signed by Lau from the address of Trigano. It was stipulated that payment would be made by telegraph transfer to the bank account of Trigano in Paris. Armed with the written confirmation, Loy remitted the requested sum from Malaysia accordingly on 12 December 2006. The documents evidence that. 21.The ’05 Painting was not the only painting by Chu Teh Chun that Loy and Try acquired during the same period of time. In early December 2006, Lau also offered another more recent painting by Chu Teh Chun at the price of €40,000. Loy had been shown a photograph of that painting. It was in January 2007 when Loy and Try decided to purchase that other painting by Chu Teh Chun as well. 22.As in the case of the ’05 Painting, Lau sent to Loy a written confirmation dated 24 January 2007 of the offer to sell that painting by Chu Teh Chun dated 2006 at €40,000. The painting was untitled. Except for that, the confirmation took the same form as the one in relation to the offer to sell the ’05 Painting; and so did the payment term. Loy remitted the sum pursuant to the payment term on 30 January 2007. That painting dated 2006 by Chu Teh Chun was later known to be “Langage Elucide I” (“the ’06 Painting”). 23.In about February 2007, Lau informed Try that the ’05 Painting was bought. As far as Try understood, Loy was also made aware of the same. It was then arranged and Try visited Lau at home in Paris in March 2007 when the ’05 Painting was inspected. Try recalled that Lau represented to him that the ’05 Painting had been paid for; and Try could collect it if he wanted. Try indeed had the idea of collecting the ’05 Painting from Lau in a few days. However it was decided that Lau would bring the same to Christie’s in Hong Kong for auction when Lau would be visiting Hong Kong at the end of June or early July 2007. The ’05 Painting was thus left in the custody of Lau for the time being. 24.At the end of June 2007, there was no sign of Lau bringing the ’05 Painting to Hong Kong as mentioned above. According to Try, he requested to collect the ’05 Painting but Lau refused. He then lost contact with Lau. It was then when Loy and Try learned about the dispute involving Lau and a friend of Loy surnamed Wu (“Wu”) in the Mainland. Concern arose in relation to the ’05 Painting and the ’06 Painting. 25.As to the ’06 Painting, Try reckoned that the ’06 Painting was still in the possession of Trigano. He then requested Loy for documentary proof of the sale of the ’06 Painting and the record of remittance of its price. Loy apparently wrote to Trigano on 3 consecutive days from 5 to 7 July 2007 in that regard. By the letters dated 6 and 7 July 2007 to Trigano, Loy specifically declared that Lau merely made contact and negotiated with Trigano for the ’06 Painting; but Loy was the buyer and thus the owner of the painting. Loy requested Trigano to keep the ’06 Painting pending the visit of Try; and Try was authorised to work with Trigano to arrange the delivery of the ’06 Painting to Christie’s in Hong Kong. There is no dispute that Loy and Try managed to secure the arrival of the ’06 Painting at Christie’s for auction. 26.As to the ’05 Painting, which Try last saw in March 2007 at Lau’s home in Paris, Try had been calling Christie every now and then to check if the painting had arrived. It was at the end of August 2007 when Loy or Try gathered from Christie’s that Lau had brought and consigned the ’05 Painting to Christie’s for auction in the name of Mau. Both Loy and Try were surprised by that. Both claimed that they did not know Mau. 27.Upon discovery of the above, Loy managed to enlist the help of Wu in the Mainland to locate Lau and Mau. After confrontation, Mau and Try met in Hong Kong at the end of September 2007; and on 2 October 2007, Mau confirmed his agreement to transfer the title and right to proceeds of auction of the ’05 Painting to Try. As mentioned, Try collected the ’05 Painting from Christie’s on the same day. 28.On 30 November 2007, Loy and Try arranged the ’05 Painting to be delivered to Christie’s for auction in the name of Galerie New Star. THE CASE OF FAN 29.Fan admitted having received overseas remittances to her bank foreign currency account. At Lau’s instruction, the moneys received were then remitted to various art galleries as payments for art works within a few days. But she denied any part or interest in those transactions of Lau’s. Fan also admitted having co-invested with Lau in art works and paintings for profits since as early as 1999. 30.Fan was adamant that she never mixed up her own money and the money arising out of Lau’s own business. She kept her own money in her Hong Kong dollar savings account whereas the transactions involving others’ money were carried out by use of her foreign currency bank account. 31.Fan stressed that the ’05 Painting was acquired entirely as hers. For that purpose, she obtained a personal loan from the bank in the sum of HK$100,000 on 19 November 2005. She settled the payment for the ’05 Painting by 2 instalments of remittance to Trigano on 28 November 2005 in the sum of €20,000 and on 26 January 2006 in the sum of €10,000 respectively. Trigano then issued what she described as a “receipted invoice” dated 3 February 2006 for the sale of the ’05 Painting to her. 32.According to Fan, the ’05 Painting was left with Lau with a view to its sale at a time as he saw fit. However, soon and in May or June 2006, she instructed Lau to sell the ’05 Painting because she needed money for her mother’s medical expenses. Therefore in August 2007, Lau was supposed to bring the ’05 Painting to Christie’s for auction on her behalf. 33.It was in about October 2007 when Lau confessed to her that the painting had been deposited with Christie’s for auction in the name of Mau instead. She was given to understand that Lau was coerced to do so as a result of his dispute with Mau; and Lau had kept her in the dark so as not to involve her in such dispute. 34.As mentioned, Try brought the ’05 Painting to Christie’s for auction in November 2007. It was in January 2008 when Fan asserted her ownership and right to recover the painting. DISCUSSION 35.Credibility became the parties’ focus during the trial. 36.Fan questioned whether Galerie New Star existed. She went so far as instructing Lau and a Parisian lawyer to conduct investigation in Paris. It was discovered that the business registration at the address reported belonged to a laundry business of a Mrs Try in the name of New Star instead of an art gallery in the name of Galerie New Star. Try did not deny that. According to him in court, New Star was actually the laundry and garment retail business of his wife’s. 37.In court, Loy explained his practice of remaining anonymous in respect of the ownership of the paintings, even if they were jointly acquired by him and Try. Both Loy and Try testified that they used Galerie New Star as a vehicle in dealings in paintings particularly by auction. Try also explained that he opened an account in the name of Galerie New Star with Christie’s in order to take the benefit of the better commission rate charged for the consignment of paintings to Christie’s for auction than the case of consignment by an individual. 38.The above explanation was not effectively contradicted. In any event, whether or not Galerie New Star was merely nominal, Loy and Try never, as they could not, seek to evade liability by hiding behind that business name. It was indeed not a separate legal entity. Claiming to be partners between themselves in the present contest, they readily acknowledge their joint and several liabilities in the event that they fail. In my view, whether Galerie New Star existed is not crucial to the determination of the dispute. 39.Attention was drawn to the email correspondence between Loy and Christie’s in early 2008. It was said that Loy gave to Christie’s different versions of how much he had paid for the purchase of the ’05 Painting and the role of Fan. In court, both Loy and Try confessed that they had all along made payments on the strength of what Lau represented to be the amounts required. They had no idea about the exact dealings between Lau and the art galleries including Trigano. But the remittance of the sum of €60,000 on 12 December 2006, as evidenced by Lau’s written confirmation dated 6 December 2006, was made for the specific purpose of acquiring the ’05 Painting. 40.As to the role of Fan, the actual knowledge that Loy and Try possessed was that she was the holder of the bank account to which their payments for paintings could be remitted as requested by Lau. The understanding was that the money would subsequently be remitted out of her account to settle the payments for the paintings upon the conclusion of the deals. That was in line with Fan’s evidence. Any suggestion further than that, even by Loy or Try, could only be inference, if not speculation. In my judgment, truth or accuracy of such further suggestion does not necessarily affect the credibility of what Loy and Try in fact managed to tell from their own knowledge and understanding. 41.There were the letters from Loy to Trigano dated 5 to 7 July 2007. Indeed Loy stated in the letter dated 5 July 2007 that his remittances to Trigano of €60,000 and €40,000 on 12 December 2006 and 30 January 2007 were made for the purchase of the ’06 Painting. In the letters on the following days, Loy also referred to that letter. 42.On its face, what Loy stated in his letter dated 5 July 2006 does not sit well with the case of Loy and Try that the remittance of €60,000 on 12 December 2006 was for payment of the ’05 Painting and not the ’06 Painting. Loy explained that it was his mistake. He made the mistake in the letter which was written in a rush for the purpose of securing the ’06 Painting. As mentioned above, that letter was written when he and Try became concerned about the ’06 Painting, not the ’05 Painting as it was no longer in the possession of Trigano. The rush and the pre-occupation of Loy by the attempt to secure the ’06 Painting was somehow reflected by the fact that Loy sent 3 letters on the 3 consecutive days. 43.For the alleged €100,000 price of the ’06 Painting, Mr Jim for Fan also sought to borrow weight from the estimation by Christie’s when the painting was auctioned in May 2008. I would be slow in accepting that, or I would effectively be making assumption or ignoring what might have happened in the valuation of the painting in the market over time. 44.Fan relied heavily on 2 documents from Trigano. There was the “receipted invoice” dated 3 February 2006. By stipulating that the price was “to be settled by two bank transfers”, the document happened to suggest the nature of an invoice for payment to be made instead of a receipt. However for her purpose, the document had to serve as a receipt that evidenced her settlement of the price of the ’05 Painting. But it should be noted that Fan was not aware of the existence of the document. Lau disclosed it only in October 2007. 45.There was then the letter from Trigano dated 30 March 2010 in reply to the enquiry by the solicitors for Christie’s. Trigano confirmed that Fan acquired the ’05 Painting which was delivered to Lau at her request. The receipt dated 3 February 2006 was therefore issued. As to the sum of €60,000 paid by Loy, Trigano admitted receipt of the sum by 2 remittances in December 2006 and January 2007, but stated that both sums were for the purchase of another painting of different format and title by the same artist. Parties understand Trigano to be referring to the ’06 Painting. 46.How Trigano came to give such a reply is unknown. Unlike the “receipted invoice” produced by Lau (and now Fan), there was no suggestion of the existence of a similar document in relation of the sale of the ’06 Painting, though also through Lau, that might have evidenced the alleged payment by 2 instalments by Loy for the ’06 Painting. 47.Trigano’s letter was also flawed in that it stated that the ’06 Painting was exported to Loy’s residence. This was contradicted by the express instruction contained in Loy’s letters dated 6 and 7 July 2007 for the ’06 Painting to be despatched to Christie’s in Hong Kong. 48.In the same letter, Trigano confirmed that the written confirmation of the offer to sell the ’05 Painting dated 6 December 2006 produced by Loy was not issued by it. However, that did not contradict the evidence of Loy that he received it from Lau. More importantly, the consequence of that written confirmation was Loy’s actual remittance of the sum of €60,000 to the bank account of Trigano on 12 December 2006, and Trigano confirmed that it did receive the sum. 49.How Lau came to be in a position to issue the written confirmation requesting Loy to pay the sum of €60,000 to Trigano for the ’05 Painting; and Trigano accepted that sum yet as payment for the ’06 Painting instead are matters that could only be explained by Lau and Trigano. The exact dealings between Lau and Trigano are far from clear. When the solicitors for Fan saw the need to seek clarification in detail from Trigano by way of letter dated 13 June 2011, Trigano replied by fax 3 months later saying that its letter dated 30 March 2010 was the only answer it could provide. 50.Fan sought to rely on what Lau deposed to in his affirmation filed in support of her application to be joined as a party to this action. Lau made the affirmation in Hong Kong in 2010. According to Fan, she has somehow lost contact with Lau since then. 51.Mr Jim for Fan submitted that his client should be entitled to rely on the affirmation of Lau as hearsay evidence, given that notice of such intention has been given to the other side. The question, he submitted, is a merely a matter of weight. I disagree. 52.The affirmation was not quite documentary evidence that may normally be admitted by virtue of section 49 of the Evidence Ordinance, Cap.8; but was specifically prepared for the purpose of adducing the evidence deposed to therein. Whether the contents of an affirmation may be adduced as evidence at the trial is governed by O.38, r.2 of the Rules of the District Court. 53.The court may order the affirmation to be read at the trial only if it is in the circumstances of the case reasonable to so order. Doubting Fan’s alleged sudden loss of contact with Lau and considering the absence of the opportunity of her opponent to cross examine such a crucial witness, I do not think it is reasonable to order his affirmation to be read as evidence at the trial. 54.Lau’s affirmation was silent on matters including Lau’s offer of the ’05 Painting for sale in September and December 2006 and the written confirmation dated 6 December 2006 issued by him to Loy requesting payment for the ’05 Painting. Therefore even assuming that affirmation were read into evidence, it would not have served the purpose of contradicting the evidence of Loy and Try in these respects, verbal or documentary. 55.The documentary evidence that Fan obtained from Lau actually fuelled the scepticism that one may have about the nature of the exact dealings between these 2 persons. Lau disclosed the “receipted invoice” in support of what he wrote in his faxes to Christie’s dated 2 and 9 October 2007. However, by those faxes, Lau actually claimed ownership and right to possess the ’05 Painting. If the sale of the ’05 Painting to Fan, as the “receipted invoice” was said to evidence, would entitle Lau to claim ownership of the painting, the only basis would be that Fan merely arranged the payment for Lau or alternatively the acquisition of the painting was at least a joint enterprise of her and Lau. Only when Fan was asked in court did she say that it was actually wrong for Lau to suggest in his faxes that he was the owner of the ’05 Painting. This is not surprising as Fan is claiming the ’05 Painting as her own property. But one wonders whether she still maintained that these documents from Lau support her case or not. 56.Whilst Fan claimed that she has so far made millions out of dealings in art works and paintings since 1999, that was, according to her, the understanding given to her by Lau. Except for the few pieces that she has kept with her, she had no idea about the other art works or paintings that Lau had allegedly acquired as her agent. Nor did she have any idea about their value. She had not even been shown those art works or paintings. Her explanation for that was basically that of trust in Lau. But she has apparently not sought to improve her state of knowledge about her alleged investments even after the discovery of the episode regarding the ’05 Painting allegedly in late 2007. 57.Notwithstanding the alleged lack of interest in Lau’s own business, Fan was apparently ready to assist Lau in making remittances overseas for Lau’s own business at her own expense by absorbing the bank charges. Notwithstanding that her share of the millions of profits had not been accounted for since 1999, it apparently did not occur to her that the alleged purchase of the ’05 Painting at the price of €30,000 could have been covered and financed by her share of profits in the hands of Lau. On the contrary, Fan found it necessary to obtain a personal loan from the bank and to settle the payment by 2 instalments. 58.Of the various sums of money that Loy and Try remitted to Fan, one was a sum of HK$490,000 remitted by Try, while he was in Hong Kong, on 26 January 2006. As always, the sum was remitted to the only bank account known to Try and Loy, which was later known to be a foreign currency account. The documents evidence that. The documents however also show that there was no entry of the deposit of that sum in Fan’s foreign currency account. Oddly enough, on the same day, there was an entry of a sum of HK$489,990 in her Hong Kong dollar account. 59.Fan could not explain the missing entry of the remittance on 20 January 2006. Mr Wong for Loy and Try pointed out that only Fan was in a position to give instruction to her bank to operate her bank accounts. He submitted that the allegation about using separate bank account to differentiate own money and the money relating to Lau’s own business was nothing but artificial. 60.Fan had her answer. She claimed that the sum of HK$489,990 represented part of the profits she made from the sale and purchase of paintings invested by Lau on her behalf. Therefore it was her own money and, as she emphasized, should be deposited into her Hong Kong dollar account. If what Fan said was true, that would happen to be the very first distribution of profits from her own investment or co-investment with Lau in paintings since 1999. Fan admitted that. But the remittance by Try to Fan’s foreign currency account would have remained unaccounted for. 61.If the sum of HK$489,990 were truly her share of profits from her investment from Lau, her share apparently did not stay with her for long. The documents showed that within just 6 days of such entry into her bank account, at least half of it was remitted out of the account back to Lau. Fan had to admit that; but explained that those were loans to Lau for his various purposes. Unless it only occurred to Lau that he needed such alleged financial assistance from Fan immediately after the distribution of her alleged share of profits, the alleged distribution to be followed by a request for the return of nearly half of it to Lau was simply artificial. Fan admitted that Lau even had the discretion to dispose of her share of undistributed profits from their co-investment for his own purpose. 62.Mr Jim for Fan submitted that the documentary evidence supports his client’s case. He emphasized that documents do not lie. It seems there are reasons for both parties to say that in respect of the documentary evidence they respectively adduced. But the documents have to be understood and sometimes explained in the circumstances known to and understood by the parties at the relevant points of time. Considering all the evidence, including the documents, I prefer the evidence of Loy and Try to that of Fan. 63.The person behind the scene pulling the strings was definitely Lau; and in my judgment, Fan was in fact closely involved, if not partners, in the dealings of Lau. The exact dealings between Lau and Trigano are far from clear. If there was in fact, as the document suggests, a sale of the ’05 Painting by Trigano to Fan, I do not find that Fan in fact purchased the ’05 Painting as her own as alleged. The Factors Ordinance, Cap 48 64.In their evidence, both Loy and Try declined to speculate whether the alleged purchase of the ’05 Painting in February 2006 in fact took place. But they were adamant that Lau offered to sell to them the ’05 Painting in September and December 2006; and that Lau confirmed that painting was bought and fully paid for by Loy and Try in February 2007. Mr Wong submitted that even assuming that Fan did purchase the ’05 Painting in February 2006 as alleged, it would not contradict his clients’ claim of ownership of the same as a result of its subsequent sale. 65.Mr Wong fell short of referring to the Factors Ordinance (“FO”). I therefore invited submissions from counsel in respect of whether and, if yes, how the FO operates in the circumstances of this case. The FO consolidates and amends the law relating to factors, mercantile agents included. Mercantile agent means one having, in the customary course of his business as such agent, authority either to sell goods, or to consign goods for the purpose of sale, or to buy goods, or to raise money on the security of goods: see section 2(1) of the FO. 66.Section 3 of the FO reads as follows:
67.It was Fan’s evidence that she authorised Lau to keep the paintings that she purchased and to sell any one of them as he saw fit. As far as the ’05 Painting was concerned, she gave actual instruction in June 2006 to sell the same. As understood by both parties, part of the ordinary course of business of Lau was dealing in paintings of others. Fairly and squarely, that put Lau in the position as a mercantile agent. 68.Whilst Fan added that the paintings would not be sold without her being first informed, she could not give any particular of any one dealing of her paintings so far. In any event, there was no suggestion or evidence that either Loy or Try had notice of any restriction or revocation of Lau’s authority of the owner to sell the ’05 Painting. 69.The sale to Loy and Try took place in December 2006 and confirmed by Lau to Try in March 2007 when Try inspected the ’05 Painting at Lau’s home. It is true that subsequently Try managed to obtain possession of the painting as a result of the transfer by Mau at Christie’s in October 2007. However that did not alter the rights of Loy and Try. Rather that was rectification necessitated by the consignment of the painting to Christie’s in the name of a stranger unbeknown to Loy and Try. 70.In the circumstances, even on the basis of Fan’s case, the sale of the ’05 Painting by Lau to Loy and Try would have been valid. The right of Fan would have been that for an account by Lau for the disposition of the painting. CONCLUSION 71.I find and make a declaration that Loy and Try (as Galerie New Star) is the legal and beneficial owner of the ’05 Painting; and is entitled to the return of the ’05 Painting subject to the first charge of Christie’s on the painting for reasonable custodian charges and its costs of the interpleader summons as directed by the court on 16 August 2010. 72.Being the losing party, Fan should ultimately be liable for the the charges levied by Christie’s for the custody of the ’05 Painting that has to be settled to enable Loy and Try to obtain the return of the ’05 Painting. I therefore make an order that Loy and Try as Galerie New Star is entitled to damages in the sum of the custodian charges incurred and payable to Christie’s. As to the amount, all the parties including Christie’s have the right to be heard. Therefore I give liberty to the parties to apply, in the absence of agreement on the charges within 14 days. 73.Insofar as it is necessary, the counterclaim by Fan is dismissed. 74.Without prejudice to the costs order made during the course of the trial, I make a nisi order that Fan shall pay:
Costs shall be taxed, if not agreed, with certificate for counsel. In the absence of application within 14 days to vary, this costs order shall become absolute.
Mr WONG Hay Yiu instructed by Messrs Johnny K K Leung & Co for the plaintiff Mr Jacky JIM instructed by Messrs Tang & Lee for the 2nd defendant | ||||||||||||||||||||
Further hearings and rulings under DCCJ 5432/2008