Midland Realty (Comm.) Ltd v. Royal Shiny Development Ltd

HCMP 2788/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2788 OF 2013

(ON AN INTENDED APPEAL FROM DCCJ NO. 4798 OF 2011)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the judgment of Deputy Judge E Tam [“the Judge”] in DCCJ 4798 of 2011.  By his judgment of 10 June 2013, the Judge dismissed the claim of the Plaintiff for unpaid commission in the sale of the Defendant’s property.  The Judge accepted the defence case that the Plaintiff had reached an oral agreement with the Defendant that no commission would be charged by the Plaintiff if the Defendant had to pay commission to another agent Colliers with whom the Defendant had signed an exclusive agency agreement in respect of the sale of the property before the Plaintiff approached the Defendant for the sale of the property. The Judge rejected the evidence of the witness of the Plaintiff and accepted the evidence of the Defence witnesses.

2.The Plaintiff applied for leave to appeal before the Judge.  Leave was refused by the Judge on 7 October 2013.

3.The Plaintiff now applies to this court for leave to appeal.

4. Pursuant to s 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

5.   Having read the grounds of appeal in the draft Notice of Appeal submitted by the Plaintiff and the written submissions advanced by counsel for the Plaintiff, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice to have the appeal heard.

6. As the Judge pointed out in his Decision of 7 October 2013, grounds 1 to 3 are basically attacking the finding of facts by the Judge.  In the judgment of 10 June 2013, the Judge gave sufficient and good reasons for rejecting the evidence of the Plaintiff’s witness and accepting the evidence of the Defendant’s witnesses. The Judge was aware of some discrepancies of the evidence of the two Defence witnesses and he alluded to the same at para 21 of the judgment.  Weighing the evidence is a matter for the Judge.  We are not satisfied that it is reasonably arguable that the Judge was not entitled to come to the factual conclusions he did in his judgment.  In our view, the Judge’s findings were also in line with the inherent probability of the matter: surely the Defendant would try to protect itself against paying commission twice; in view of the inadequate and unsatisfactory explanation of the unusual handwritten clause in the Confirmation of Service Charge and the omission to call Mr Ho as a witness for the Plaintiff, the documentary evidence tends to support the case of the Defendant instead of that of the Plaintiff.

7.  Grounds 4 and 5 are bad points.  The consideration for the oral agreement was the making of the provisional agreement of 11 November 2010.  It may be more accurate to regard the oral agreement as a collateral agreement than a variation of the terms of the 11 November 2010 agreement.  The result would be the same.

8.   Ground 6 is wholly immaterial once we reach the conclusion that the other grounds are not reasonably arguable.

9.  For these reasons, we refuse to grant leave to appeal.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

10. The Defendant has not lodged any statement of opposition or responded to the application.  We therefore make no order as to costs.

Written submissions by Mr Shu Wun Lee instructed by Tony Kan & Co for the Plaintiff

Cheung & Liu, Solicitors for the Defendant