Chui & Lau (A Firm) v. Sellon Enterprises Ltd
Read the full judgment text of DCCJ 2230/2013 on BabelCite. This District Court judgment was delivered on 6 August 2013.
1. The plaintiff, a firm of solicitors, had by ways of summons dated 27 June 2013 applied for an interlocutory injunction against the defendant, a limited company incorporated in Hong Kong, prohibiting the defendant from removing assets within the jurisdiction up to the value of HK$462,559.79 (“the Summons”). At the end of the hearing before me on 11 July 2013, I granted an order sought by the plaintiff prohibiting the defendant from the disposal of assets up to the said amount. I said I would
|
DCCJ2230/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2230 OF 2013 --------------------
--------------------
------------------------------------ REASONS FOR DECISION ----------------------------------- Introduction 1.The plaintiff, a firm of solicitors, had by ways of summons dated 27 June 2013 applied for an interlocutory injunction against the defendant, a limited company incorporated in Hong Kong, prohibiting the defendant from removing assets within the jurisdiction up to the value of HK$462,559.79 (“the Summons”). At the end of the hearing before me on 11 July 2013, I granted an order sought by the plaintiff prohibiting the defendant from the disposal of assets up to the said amount. I said I would provide the reasons for my decision in due course. Here are the reasons. Background 2.The plaintiff, as a firm of solicitors, provides legal services to its clients in different areas of law, including civil and criminal litigation, commercial work and coveyancing matters. 3.The defendant was at all material times the registered owner of a property known as Flat C, 5th Floor, Block 3, Robinson Heights, No.8 Robinson Road, Hong Kong (“the Property”). 4.Since or shortly after the defendant’s incorporation in June 1993, Madam Song Lei (“Song”) has become both the sole shareholder and sole director of the defendant and has remained so until the date hereof. 5.At all material times and up until sometime in 2011, Sung Chun (“Sung”) and Song were husband and wife. In or about August 2011, Song filed for divorce from Sung. 6.At all material times, both Sung and Song were residents in Canada. 7.In about 2004, the defendant, Sung and Song were all sued by Sun Hung Kai Investment Services Limited (“SHK Investment”) in High Court Action no. HCA 1720 of 2004 (“HCA 1720 of 2004”) in which the Writ of Summons was registered against the Property as a lis pendens. 8.The plaintiff alleges that Song, in her capacity as the sole director of the defendant and in her own personal capacity, instructed the plaintiff to act for both the defendant and herself in HCA 1720 of 2004. It has further been alleged by the plaintiff that Song represented to Mr Norman Chui (“Chui”), the senior partner of the plaintiff, that both she and the defendant were short of cash to pay their legal costs and disbursements to the plaintiff, but the defendant would pay all their legal costs and disbursements in respect of the services rendered to her and the defendant in HCA 1720 of 2004 upon sale of the Property. This was allegedly agreed and accepted by the plaintiff (“the 1st Agreement”). 9.The plaintiff did provide legal services to the defendant and Song in HCA 1720 of 2004 from 2004 to 2009, resulting in the withdrawal of SHK Investment’s claim against the defendant and Song and its filing of a sealed copy of the Notice of Withdrawal against the Property. The plaintiff rendered its Bill of Costs no.9080034 (“the 1st Bill”) dated 3 August 2009 in the sum of HK$154,057.93 to Song for payment. 10.Song by a fax written in Chinese and in her own handwriting dated 8 October 2008 agreed to pay the 1st Bill. 11.Up until the hearing of the summons herein, the defendant has not paid anything under the 1st Bill. 12.In or about October 2011, Song instructed the plaintiff to render legal services and to discharge the Memorandum of Charge then registered against the Property. The plaintiff successfully obtained a Memorandum of Satisfaction in respect of the Memorandum of Charge. The plaintiff then sent its bill of costs dated 7 March 2012 in the sum of HK$12,473 (“the 2nd Bill”) to Song in her capacity as the sole director of the defendant for settlement. Song sent a cheque for the said sum of HK$12,473 drawn on HSBC for settling the 2nd Bill. However, she subsequently asked the plaintiff to withhold cashing the said cheque. 13.In or about October 2004, Sung called Chui from Canada and instructed the plaintiff to issue a fresh legal action so as to support the defendant’s defence in HCA 1720 of 2004. Chui allegedly asked Sung to pay costs on account in the sum of HK$50,000.00 to pay for the court fee, counsel fee, disbursements, etc. Sung allegedly told Chui that he would ask his sister Sung Ping to pay a sum of HK$20,000 to the plaintiff. As to the balance, he claimed that he was a 50% beneficial owner of the Property and the plaintiff did not have to worry about being paid as the Property would be sold soon. He then passed the phone to Song who allegedly undertook to Chui that she would cause the defendant to pay for any outstanding legal costs to the plaintiff upon the sale of the Property and reassured Chui that the plaintiff would not have to worry about the fees to be incurred in the new action. The said undertaking was allegedly accepted by Chui on behalf of the plaintiff to form the basis of the agreement for rendering legal services by the plaintiff to the defendant (“the 1st Oral Agreement”). 14.Pursuant to the 1st Oral Agreement, the plaintiff issued a Writ of Summons in High Court Action No. 85 of 2005 (“HCA 85 of 2005”) in early January 2005 and prosecuted the action until October 2005 when it was at the stage of close of pleadings. The plaintiff rendered its bill of costs in the sum of HK$18,372 (“the 3rd Bill”) to Sung for settlement and at the same time asked him to put the defendant in fund to the extent of HK$120,000 because the plaintiff had to instruct Counsel to act on his behalf to further prosecute the action. Neither Sung, nor Song, nor the defendant had paid for the 3rd Bill. 15.By this time, it was clear that Sung was facing serious allegations of fraud and breaches of trust made against him by SHK Investment in HCA 1720 of 2004, involving sums in the region of HK$10.5 million. SHK Investment had also instituted legal proceedings against Sung in Canada. Sung had also become the subject of criminal investigations by the authorities in Hong Kong. The plaintiff naturally became concerned about both Sung and Song’s ability to pay their legal fees, despite the fact that both claimed that they were innocent as Sung claimed that he had the authority from his client to withdraw the amount of HK$10.5 million in payment of the services rendered by him. 16.Sung returned to Hong Kong in February 2006 when he was intercepted and arrested at the Hong Kong International Airport for the criminal offences allegedly committed by him in relation to the forging and uttering fraudulent documents as well as theft for the amount of HK$10.5 million from SHK Investment. The plaintiff acted for Sung and obtained bail for him. Such request to act for Sung in the bail application was allegedly made by Song in her capacity as the sole director of the defendant when she called Chui of the plaintiff and agreed to pay for all legal costs in respect of any legal services rendered to Sung in this matter (“the 2nd Agreement”). 17.The plaintiff, allegedly relying on the undertaking made by Song under the 2nd Agreement, did provide legal services to Sung in obtaining bail for him. However, Sung decided to jump bail and returned to Canada instead. The plaintiff rendered its bill of costs in the sum of HK$32,173 (“the 4th Bill”) for the services rendered for the bail application. That bill remained unpaid by Song or the defendant. 18.In or about the end of October 2009, Song telephoned Mr Alex Chan of the plaintiff (“Chan”), a consultant at the plaintiff’s firm, who was by this time handling the defendant as well as Song and Sung’s cases together with Chui, informing him that Sung was arrested by the Police in Canada, pending extradition to Hong Kong. She requested Chan to attend to his criminal trial in Hong Kong. His Canadian Counsel also needed the plaintiff’s assistance in order to represent Sung in the extradition proceedings. She said Sung also needed the advice of the plaintiff badly. Song specifically asked Chan not to worry about the payment of the legal costs to the plaintiff since the defendant would pay all the legal costs to the plaintiff in relation to Sung’s case upon the sale of the Property (“the 2nd Oral Agreement”). 19.There were various faxes written by Song to Chan of the plaintiff between November 2009 and December 2010 to the effect that she would be responsible for paying Sung’s legal fees and that she would pay all the outstanding legal fees owed to the plaintiff upon the defendant’s selling of the Property. She also requested the plaintiff to copy all correspondence and documents in relation to Sung’s case to Song allegedly in her capacity as the defendant’s sole director. 20.In May 2011, the plaintiff rendered a bill in the sum of HK$136,516 to the defendant for services rendered to Sung (“the 5th Bill”). 21.Neither Song nor the defendant had ever paid the 5th Bill. 22.Throughout the time while the plaintiff was providing legal services to Sung, in particular after Sung was extradited to Hong Kong and when he was facing criminal charges in the courts in Hong Kong, Song had reassured the plaintiff that they would be paid. 23.Subsequently Sung was convicted in the District Court for 4 counts of procuring the making of entries in a record of a bank by deception and using a false instrument. He was sentenced to a term of 6 years and 9 months imprisonment. His appeal on conviction as well as on sentence was dismissed by the Court of Appeal in 2012. 24.In January 2012, the plaintiff sent a bill to the defendant via Song in the sum of HK$108,967 (“the 6th Bill”). Again, neither the defendant nor Song had ever paid that bill. 25.Between 2007 and 2012, the plaintiff did from time to time remind Song, in her capacity as the sole director of he defendant, to settle those bills. However, each time, Song reassured the plaintiff that the defendant would pay for those bills upon the sale of the Property. 26.By an email dated 13 June 2013 to the defendant, the plaintiff informed the defendant that they knew that the defendant had recently sold the Property and demanded the defendant to either pay the outstanding bills (wrongly calculated at HK$475,875.79 at the time) or instruct the lawyers acting for the defendant in the sale of the Property to produce to the plaintiff an undertaking in writing in a form of satisfactory to the plaintiff to pay the sum of HK$475,485.79 from the proceeds of the Property upon completion of the sale. 27.By an email dated 14 June 2013 to the plaintiff, Song did not answer the plaintiff’s demand. By a letter dated 14 June 2013, Song merely asked the plaintiff to present a cheque dated 15 October 2012 on 12 August 2013 for the settlement of the 2nd Bill and said that she would issue a cheque dated 10 August 2013 for settlement of the 1st Bill provided that the plaintiff presented it on 12 August 2013. 28.By a letter dated 15 June 2013, the plaintiff wrote to the defendant stating, among other things, that (a) the cheque dated 15 October 2012 was a stale cheque which the bank would not process; (b) requested the defendant to send a fresh cheque to settle the 2nd Bill; (c) the plaintiff did not accept her post-dated cheque for settling the 1st Bill; and (d) reiterated the plaintiff’s demand as stated in their email dated 13 June 2013. 29.By an email dated 19 June 2013, Song said that she would make 2 bank drafts for settling the 1st and 2nd Bills and stating, for the 1st time during the entire period when the plaintiff had been providing legal services to her, her ex-husband and the defendant, that it was a mistake for the plaintiff to send all the outstanding bills of costs to the defendant. 30.The plaintiff claims that the ignorance of the plaintiff’s demands as shown in her emails dated 14 and 19 June 2013 and her letter dated 14 June 2013 evinced an unequivocal intention on the part of the defendant to repudiate the 1st Agreement, the 2nd Agreement, the 1st oral Agreement and the 2nd Oral Agreement to pay all the outstanding sums owed to the plaintiff under the six different bills of costs, of which the plaintiff is entitled to accept. 31.The plaintiff further claims that up to the date of the issue of writ, the defendant has not paid any sum under the outstanding bills. The plaintiff, by issuing the Writ, has accepted the repudiation by the defendant of the above agreements. 32.In June 2013, the plaintiff found out from another solicitor firm, when the latter wrote and requested the plaintiff to provide assistance to locate certain documents in relation to the Property, that Song, in her capacity as the sole director of the defendant, was trying to cause the defendant to sell the Property without informing the plaintiff or instructing it to do so. 33.As Song has emigrated to Canada for about 10 years and has not maintained any home in Hong Kong, she has no real connection to Hong Kong. Sung has now been divorced from Song and is serving a long sentence in prison for the crime he had committed. And as far as the plaintiff knows, the defendant has no other assets in Hong Kong other than the Property itself. The completion of the sale and purchase of the Property will take place in early August 2013. Thus, it is not difficult to imagine that once that Property is sold, unless restrained by the Court through a Mavera Injunction Order, it is unlikely that the plaintiff will ever see the bills paid by Song or the defendant. 34.Hence, on 27 June 2013, the plaintiff took out the present Summons to apply for an injunction. The plaintiff’s case 35.Both Chui and Chan have filed affidavit evidence in support of the present application. 36.Chui in his affidavit filed on 27 June 2013 basically has reiterated matters pleaded in the statement of claim. What is significant though is that he is able to verify the various conversations he had with Song where she had reassured him that the defendant would sell the Property soon and she would on behalf of the defendant would pay his firm’s fees after the sale of the Property and there was nothing for him or the plaintiff to worry about. 37.Chan in his affirmation filed on 27 June 2013 referred to a number of fax or emails written by Song to him or Chui in which Song had promised that the defendant would pay all the outstanding legal fees upon selling of the Property. They included:-
38.Chan in his affirmation also verified the various matters pleaded in the statement of claim insofar as they involved him. 39.Both Chui and Chan have filed a further affidavit/affirmation in response to matters stated in Song’s affirmation filed in opposition of the interlocutory injunction. The defendant’s case 40.Song, in her capacity as the sole shareholder and director of the defendant has filed an affirmation on 8 July 2013 in opposition of the plaintiff’s application. 41.In the affirmation of Song, she gave her address as the one where the Property is located when it is clear from the circumstances and background of the case that she is not ordinarily resident in Hong Kong and the Property has been rented out to tenants for a long period of time already. 42.In the affirmation, Song admits that she has been the sole shareholder and director of the defendant shortly since its incorporation in June 1993. It was in late October 1994 that the defendant had purchased the Property and has been holding the Property under its name since then. She first met Chui in 1992 or 1993 when Chui witnessed a document for her. She emigrated to Canada in or about 1997 and had lived with her ex-husband Sung in Canada until his return to Hong Kong to face the criminal charges and later imprisonment. She says that she has not maintained any contact with Chui since her migration to Canada. 43.Song denies that she had any direct involvement with the litigation initiated by SHK Investment and had anything to do with Chui or anyone else in the plaintiff. She produced receipts to show that all the bills of the plaintiff were paid by Sung’s mother or sister at the time. Song claims that it was either out of delierate intention or inadventence that the plaintiff put down her name, the name of the defendant or a combination of her name, the name of Sung and the defendant under the item of “A/C of” on the receipts. Song claims that by using the names in such combinations, it demonstrated that the plaintiff had no idea who was or were its client. 44.Song claims that she had either no direct knowledge or only very little knowledge about the legal proceedings faced by her then husband Sung. She also says that she had no access to her then husband’s email account at the time and did not receive any documents by fax which were all attended to by her ex-husband. Therefore, she did not know anything about the bills sent to her in relation to the SHK Investment case as claimed by Chan in his affirmation. 45.She also denies that she had said anything to Chui or Chan to the effect that she was doing so for and on behalf of the defendant. 46.She further claims that it was Sung and/or his mother and sisters who had instructed the plaintiff and who had agreed to bear the legal costs of the plaintiff in respect of the criminal proceedings and the subsequent appeal. She says that she had never promised to settle the legal costs of the plaintiff in the criminal proceedings and had certainly never done so for and on behalf of the defendant. 47.The only bills that Song admitted responsibility on behalf of the defendant were the 1st Bill and the 2nd Bill. For the 1st Bill, Song claims that it had issued a cheque in the sum of HK$154,057.93 dated 10 August 2013 for which the plaintiff allegedly refused to accept. The 2nd Bill, in the sum of HK$12,473, was in relation to the removal of a charge registered against the Property by the management company as a result of unpaid bill for the renovation work done to the common area of the Property. Song claims that she gave a cheque in that sum on 12 October 2012 to the plaintiff but the same was not accepted by the latter. 48.Song further adds that the fact that different names appeared in those 6 different bills showed that the plaintiff itself was confused as to who was actually its client(s) at the time. Song says that save and except the 2nd Bill which was addressed to the defendant, of which she has admitted liability on the defendant’s behalf, all the other bills were either addressed to her or Sung. On the 5th Bill, the client’s name was stated to be “Sung Lei”. Song claims that, given her name is “Song Lei” and her ex-husband’s name is “Sung Chun” (which incidentally consisted of the same Chinese character “宋” being both their surname) and it was Sung who had given instructions to the plaintiff in respect of the extradition and its related proceedings, the bill must have meant for Sung instead of her. Song alleges that the plaintiff must have been confused as to who was its client under this bill. 49.As regards to the 1st Bill, Song says that instead of the defendant, she was named as the client under the bill. She claims that if there is any truth in what Chui and Chan said that every time she spoke to them or did anything she was doing so on behalf of the defendant, it was inconceivable that the defendant’s name did not appear under the bill as its client. 50.Based on those reasons, Song says there is no reason or ground for the plaintiff to request the defendant to settle the 1st and 3rd to 6th Bills. Discussion 51.The principles governing interlocutory injunction are well known and are clearly set out under Order 29 of the Hong Kong Civil Procedure 2013 Vol 1 pp 636-682. There is no need for me to recite them here. It is also not disputed that this court has the jurisdiction to grant such injunctions pursuant to section 52 of the District Court Ordinance, Cap 336. 52.In essence, for the plaintiff to succeed in obtaining an interim order for Mareva Injunction, it has to establish the following:-
(i) Serious question to be tried 53.There is no doubt that there will be serious questions to be tried in this case. 54.The plaintiff is a reputable and long established firm of solicitors in Hong Kong. Prior to the issue of the present proceedings to recover the outstanding fees in question, the plaintiff has had a long standing solicitor and client relationship with Song, the sole director and shareholder of the defendant and her ex-husband Sung. The plaintiff had also acted on behalf of the defendant at least on two different cases where the defendant was a party to the proceedings. Hence, it is fair to say that the plaintiff must realize the close relationship between Song, Sung and the defendant. 55.Further, as their solicitors, both Chui and Chan of the plaintiff must have been fully aware that the only assets that the defendant has or had in Hong Kong is the Property itself. As Song is a Canadian citizen/resident and her ex-husband is serving a long term prison sentence in Hong Kong, it is not difficult to imagine that unless they could extract an undertaking or agreement from her that, upon the sale of the Property, all their outstanding bills will be paid by the defendant, there was no reason why they should continued to provide such legal services to Song or her ex-husband. After all, the plaintiff is running a legal practice and not a charity. 56.Once the matter is seen in those light, it is not difficult to see that both Chui and Chan of the plaintiff would have reached the various agreements and oral agreements with Song, in her capacity as the sole director and shareholder of the defendant, as pleaded in the amended statement of claim. 57.In my view, the plaintiff’s case is partly supported by the various faxes written by Song to them where she has expressly stated that she would pay all the outstanding bills of the plaintiff upon the sale of the Property. As the sole director of the defendant, she is the only person who could cause the sale of the Property; the timing of it and where the proceeds of the sale should go after the completion of the sale. While I agree with Mr Ho, counsel for the defendant, that some of the faxes Song had written to Chan or Chui in Chinese did not expressly state that she had agreed on behalf of the defendant to take up the responsibility to pay all the outstanding bills, reading between the lines, it must be highly arguable that she had agreed on behalf of the defendant that it would pay those bills upon the sale of the Property. 58.I am fully aware that at this stage of the proceedings it is not part of the function of the court to resolve any conflicts of evidence on affidavit. All I need to satisfy at this stage is that there are serious question(s) to be tried. 59.Given the background to this case and how those bills had been accumulated over a long period of time without payments from either Song or her ex-husband, it is only natural to expect that some kind of agreements must have been reached between the plaintiff and Song (in her capacity as the sole director and shareholder of the defendant) to settle those bills, especially when the plaintiff was fully aware that the only valuable assets which Song or her ex-husband Sung had at the time was in the form of the Property owned by the defendant. 60.In the aforesaid premises, I am of the view that there are serious questions to be tried in this case. In fact, without making any findings on facts, I opine that the plaintiff has a good arguable case for the purpose of obtaining a Mareva injunction. (ii) Assets within the jurisdiction 61.The evidence filed by the parties reveals that the defendant’s only assets in Hong Kong is the Property in question. The defendant does not seem to dispute this. (iii) Real risk of dissipation 62.It is clear that once the Property is sold, Song, in her capacity as the sole director of the company, can direct the transfer of the proceeds of sale out of Hong Kong in no time at all. The fact that Song is a Canadian citizen/resident and Sung is in prison means that there is no realistic chance that the plaintiff will ever get paid for the services provided either to the defendant or Sung or Song in the past from them. 63.According to Chui, Song had told him on several occasions that she knew that they had owed the plaintiff a lot of legal fees. She had assured Chui repeatedly that after the tenant moved out, she would cause the defendant to sell the Property and that the plaintiff would get paid out of the proceeds of sale. Chui says that it was relying on those representations and warranties made by Song on behalf of the defendant that he had allowed his colleagues to continue to provide legal services to Song and Sung. 64.It was against the above background that Chui has found out in June 2013 that the defendant was trying to sell the Property behind the plaintiff’s back when the plaintiff received a letter from another firm of solicitors asking the plaintiff to locate certain documents in relation to the Property. Although Song tried to explain this in her affirmation by saying that it was Chan who had introduced the new firm of solicitors to her, in my view, it is extremely doubtful whether Chui or Chan would have any knowledge of the impending sale through this new firm of solicitors as the original agreement between Song and Chan was that the defendant would use the plaintiff to represent the defendant in the sale of the Property so that the plaintiff could retain part of the proceeds to settle the outstanding bills first. 65.In my judgment, the reason why Song had caused the defendant to use another firm of solicitors for the sale of the Property was with a view to defeat the plaintiff’s claim for the outstanding fees. She was fully aware that the defendant, herself and her ex-husband had over the years incurred a great deal of legal fees for services rendered by the plaintiff to them. As demonstrated in her various fax letters in pleading for forbearance from the plaintiff, she also knew very well that the plaintiff was willing to withhold claiming those outstanding fees due to the promises made by her to settle those fees by the defendant upon the sale of the Property. 66.The circumstances under which the defendant tried to dispose of the Property through another firm of solicitors strongly indicate that Song, as the sole director and shareholder of the defendant, was trying to do so discreetly behind the back of the plaintiff with a view to defeat their claim for the outstanding fees. I am of the view that unless the defendant is restrained from doing so, there is a real risk of dissipation of the proceeds once the transaction for the sale of the Property is completed. In such event, whatever judgment the plaintiff may able to obtain at the end of the day, it will have no effect whatsoever. (iv) Balance of convenience 67.The completion of the sale of the Property is scheduled to take place on or before 8 August 2013. The plaintiff is seeking an Order to restrain the defendant from removing assets up to the total amount represented by the 6 bills only, ie at HK$462,559.79. 68.According to the land search done by Chan, under the sale and purchase agreement dated 7 June 2013, the Property was sold for a sum of HK$11,900,000 and of which the defendant had already received 10% by way of deposit in the sum of HK$1,190,000. 69.By granting the interlocutory injunction order, it would not prevent the defendant to complete the transaction with the new purchaser. The defendant would still be able to retain most of the proceeds of the sale after completion. 70.However, if such an order is not granted, as mentioned above, it is most likely that the plaintiff will never get paid for the fees stated in the 6 bills of costs. 71.Thus, in my view, the balance of convenience clearly lies in favour of the plaintiff and in granting the order sought by it. (v) Undertaking as to damages 72.Chui, as the senior partner of the plaintiff, is willing, for and on behalf of the plaintiff, to give an undertaking to the court to indemnify the defendant of any damages which it may suffer as a result of the Mareva injunction granted by this court. 73.In my opinion, the undertaking provided by the plaintiff will be more than sufficient to cover any loss or damage which the defendant may suffer in the event that the injunction is discharged or should the defendant able to succeed in her defence in the main action. Conclusion 74.For the above reasons, I have granted the interlocutory injunction order sought by the plaintiff on 11 July 2013. 75.As to costs, I have made the usual order of plaintiff’s costs in the cause with certificate for counsel.
Mr Gary Lam Chin-Ching, instructed by Chui & Lau, for the plaintiff Mr B K Ho, instructed by Lau & Chan, for the defendant | |||||||||||||||||
Further hearings and rulings under DCCJ 2230/2013