Lee Siu Mui v. Stewart and Co (A Firm)
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CACV000016/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CIVIL APPEAL NO. 16 OF 1968 (On Appeal from O.J. Action No. 669 of 1967) -----------------
----------------- Coram: Rigby, S.P.J. & Mills-Owens, J. Date of Judgment: 28 May 1968 ----------------- JUDGMENT ----------------- 1. This was an appeal from the judgment of Briggs, J. dismissing the plaintiff's claim against the defendants, a firm of solicitors, for the return of a sum of $16,000.00 and allowing the defendants' counterclaim against the plaintiff for the sum of $3,273.00 being the balance of monies due and owing by the plaintiff to the defendants for professional services rendered by the defendants to the plaintiff. At the conclusion of the hearing of the appeal we dismissed it indicating that we would give our reasons in writing for so doing. We now do so. 2. The plaintiff's claim was for the return of a sum of $16,000.00. This sum was originally paid into court by the defendants, as solicitors acting for the plaintiff, in pursuance of an order made in 1963 by a judge of the Supreme Court as a condition preceding to a stay of execution of a judgment given against the plaintiff in an action brought against her for the recovery of possession of a flat occupied by her, and for arrears of rent. The facts of the case have been very fully set out in the admirably lucid judgment of the trial judge and it is unnecessary for us to repeat those facts in any great detail. They concern the relationship of the parties, and the conduct of those parties, over several years during the course of which both the civil action, to which we have referred, and a criminal prosecution, were brought against the plaintiff. Throughout this long period the defendants, together with counsel briefed for her, acted on behalf of the plaintiff both in the civil action and in the criminal prosecution. 3. The civil action, both for recovery of possession and arrears of rent, was commenced in 1962. Later in that year a settlement of the action was recorded in court on terms that the present plaintiff should give vacant possession of the flat and pay mesne profits from the date of the settlement of the action until vacant possession was granted. In March 1963 the plaintiff was convicted in the magistrate's court upon two charges of assault and criminal intimidation; the victim being her landlord. In May 1963, the plaintiff being still in possession of the flat and having failed to pay mesne profits for some considerable time, a writ of execution to recover possession of the flat was issued against her. At approximately the same time application was made to the magistrate in the criminal case in which the plaintiff had been convicted, for a review of his decision. This application proving unsuccessful, an appeal was lodged against both the conviction and the sentence, although subsequently the appeal against sentence, was abandoned. The appeal was unsuccessful. 4. In May 1963, in regard to the writ of execution taken against her, the plaintiff was granted a stay of execution of the writ for a limited period of time and conditional upon the sum of $16,000.00 being paid into court by her. She paid this sum to her solicitors, the defendants, who paid it into court. Subsequently, in June 1963 a further stay of execution was obtained on behalf of the plaintiff and it was in fact ordered that execution be stayed "until further order". Now, it is apparent throughout this period, and it was so found by the learned trial judge, that the plaintiff was most anxious to retain possession of the flat and negotiations were continuously in progress for the purpose of reaching a final settlement between the plaintiff and her ...(illegible) landlord. Indeed, an offer of settlement was put forward in writing by the landlord's solicitors the effect of which was that the plaintiff should vacate the premises by a specific date, that she should be paid back the sum of $16,000.00 then in court and receive in addition thereto a further $7,000.00. Furthermore, each party was to bear its own costs. The terms of that offer were to be open for seven days. It will be borne in mind that the plaintiff was at all times reluctant to give up possession of the flat. That offer for settlement was unsuccessful. 5. Now, subsequently to that date the Hong Kong Chinese Bank, who were Mortgagees of the property, exercised their right of foreclosure and in October 1965 entered into possession of the premises. As the learned judge pointed out this, of course, vastly affected the position as between the plaintiff and her former landlord; he no longer required possession of the premises - indeed, he was no longer entitled to possession - but he did want from the plaintiff his mesne profits which by that time were very considerably in arrears; indeed, there was evidence that such arrears amounted to $21,000.00 the landlord continued to press for a settlement and finally a settlement was reached between the parties. The terms of settlement appear to have been ...(illegible) favourable to the plaintiff. The $16,000.00 was still in court; the terms of settlement were that $11,000.00 of it should be returned to the plaintiff and the landlord was to receive $5,000.00. Each party was to pay their own costs. The terms of that settlement were made an order of the court on May 7, 1966. 6. In accordance with the terms of that settlement the defendants, acting on behalf of the plaintiff, withdrew the $11,000.00 from court and paid it into the plaintiff's client's account. It is apparent that at that time the plaintiff owed the defendants a very considerable sum of money for costs, including counsel's fees, incurred on her behalf both in the criminal appeal and in the protracted civil action between the plaintiff and her former landlord. 7. It is in respect of the settlement of the civil action upon the terms to which we have referred that the plaintiff based her claim. She contended:- (1) that she was not informed beforehand of the nature and terms of the settlement; (2) that it was disadvantageous to her and (3) that she had never intended that there should be a settlement in any event. Dealing specifically with each of those contentions the learned judge was fully satisfied that the terms of the settlement had been communicated to the plaintiff under cover of a letter despatched to her from the defendants' office and dated the 14th day of April. Secondly the learned judge was satisfied - and indeed it must be self evident - that the terms of settlement were in fact highly advantageous to the plaintiff at that time. The amount then owing by her by way of mesne profits was $21,000.00; the landlord was prepared to settle - and did in fact settle - upon payment of $5,000.00 8. As the learned judge pointed out, the terms of settlement offered in 1965 were in no way comparable with those offered in 1966. In 1965 the landlord, as landlord, was anxious not merely to recover the arrears of rent then due to him, but was still more anxious to recover vacant possession of the flat. It was for that reason that most generous terms were offered to the plaintiff if she was prepared to surrender possession of the flat. The position was entirely different in 1966; by that time the Hong Kong Chinese Bank, as mortgagees, had exercised their right of foreclosure and entered into possession of the premises including this flat. The former landlord was no longer concerned with or entitled to possession of, the flat but was solely interested in recovering mesne profits still owing to him over a long period of time by reason of the plaintiff's failure to pay. The trial judge was fully satisfied upon the evidence before him that not only had the plaintiff refused the 1965 offer to settle because she was not prepared to surrender vacant possession of the premises, but he further found upon the facts that the 1966 terms of settlement had been communicated to her. Upon the record it is sufficient to say that there was ample evidence upon which he could arrive at those findings of fact. 9. Thirdly and lastly the appellant complained that she had never agreed, and never would have agreed, to a settlement of the action brought against her by the landlord. In support of this contention she produced in evidence a letter dated March 5th addressed by her to Mr. Stevenson. This letter included the following paragraph:-
That letter was signed by the plaintiff. The action referred to is, of course, the civil action under consideration brought against her by her landlord to which we have referred throughout these proceedings. Mr. Stevenson stated that he saw this letter for the first time when it was produced before him at the trial and that he had never received it. He put his firm's incoming mail book in evidence; that book does not record that any letter came from the plaintiff during the relevant period. The plaintiff did not include this document in her affidavit of documents; nor was it produced at the meeting of the plaintiff with Mr. Gregory, a partner in the firm of solicitors appearing for the defendants in September 1967, which was arranged in an attempt to agree a bundle of documents for the purposes of this case. Mr. Gregory, who was called as a witness at the trial, said that he had never seen the letter at any time before it was produced by the plaintiff in the course of the trial. The plaintiff herself said that she had tried to show it to Mr. Gregory at the meeting referred to above, but the trial judge disbelieved this evidence. The learned judge expressed his belief that this letter was fabricated by the plaintiff for the specific purposes of this trial and in order to assist her case. It is perhaps relevant to observe here that the learned judge, in the course of his judgment, was highly critical of the appellant's conduct and behaviour throughout the trial; a criticism which would appear very amply to be justified by even a superficial perusal of the record of the case. The judge found that the plaintiff well knew of the terms of the settlement of May 1966 before it was actually made an order of the court; that that settlement was very much in her favour, and that she never gave instructions that the case was not to be settled. We are entirely satisfied that there was ample evidence to support these findings of fact. 10. The plaintiff complained that the bill of costs submitted to her by the defendants was unreasonable. The evidence shows that she was informed by the defendants in writing more than once of her right to have their bill of costs taxed; it is clear that she made no attempt to avail herself of that right. Finally, the appellant complained that the defendants obtained an order for the payment out of court of the $11,000.00 without her knowledge and consent. It is apparent that this sum was credited to the account of the plaintiff with the defendants. This the defendants were entitled to do by virtue of the provisions of the Solicitors' Accounts Rules (see Rules 7(a)(iv) and 12). The learned judge found as a fact that the defendants followed the accepted and correct practice when they showed the credit of $11,000.00 in their bill of costs which was submitted to the plaintiff. We agree. The total amount of the bill of costs being $14,273.00 it is clear that the defendants were entitled to counterclaim in this case for the balance of $3,273.00 being still due and owing to them. 11. For the purposes of this appeal the plaintiff seeks to raise three matters. First, she asks for leave to call fresh evidence which, it is said, would have a vital bearing on the case. Secondly, she makes reference to the fact that at some stage in the proceedings she had handed over to the defendants the registration fee for payment to the Land Office, and that the defendants failed to proceed with registration of the tenancy agreement between herself and her landlord, and she contends that if that agreement had in fact been registered, as it should have been, it would have had a material bearing on the action between the landlord and herself in which he claimed for recovery of possession of the flat occupied by her. Thirdly, she denies that she at any time owed to the defendants the sum of $14,273.00, being costs claimed against her, and, according to her grounds of appeal, she maintains that she could produce further evidence to support this denial. 12. Dealing specifically with these three matters raised by her it would appear that the further evidence which she would seek to put before the court is the evidence of some postal official or officials which would purport to show that the letter dated the 14th June 1965 informing her of the offer of the 1965 terms of settlement was never received by her and that that letter was in fact returned, marked undelivered, to the defendant firm. For this purpose, at the trial, the plaintiff specifically stated that a Post Office official, a Mr. Hanson, could prove this fact. The record shows that not only did the learned judge grant leave to the appellant to call Mr. Hanson for this purpose, but that at a later stage of the case the appellant expressly stated that she had decided not to call Mr. Hanson as a witness. This disposes of this first ground of appeal. 13. The second ground of appeal requires some explanation. At some stage during the civil action brought against her by her landlord for recovery of possession of the flat, the plaintiff endeavoured to persuade her legal advisers, including senior counsel at that time appearing on her behalf, to produce in evidence a tenancy agreement signed by the landlord granting to her a lease for an express term of years. This agreement was undoubtedly signed by the landlord. But it was this very agreement which had been the subject of the criminal charge of intimidation brought against the appellant by her landlord. The court found as a fact that the landlord had been compelled to sign this agreement by the plaintiff under threat of acutal physical duress. That finding of fact and consequent conviction thereon was unsuccessfully appealed against. A registration of the tenancy agreement at the Land Office would have required a memorandum of agreement signed by both the landlord and the plaintiff. The plaintiff's legal advisers, one might have thought with every conceivable justification, expressed the opinion that in the circumstances there was no prospect that the landlord would have been prepared to have put his signature to the memorandum of agreement. It was for this reason that no further attempt was made by the defendants to register this so-called tenancy agreement which a court had earlier found had been obtained as a result of the threat of physical violence offered by the appellant to her landlord. 14. The trial judge, in the course of his judgment, makes reference to this document in the following terms:-
Mr. Bernacchi was in fact the senior counsel appearing for the plaintiff in both the civil action and the criminal prosecution; Mr. Bernacchi himself gave evidence for the present defendants in the course of the present proceedings. In the circumstances to which we have referred we were fully satisfied that there was no substance in this ground of appeal. 15. Turning now to the last ground of appeal. The appellant contended that she did not owe the defendants the sum of $14,273.00 as professional costs incurred by her and that she could produce further evidence to support her statement. As we have already stated, there was evidence before the trial judge that the plaintiff was informed by the defendants that she was fully entitled to have her bill of costs taxed; she did not choose to do so. The trial judge commented: "She has not sought to avail herself of that right. And I do not think she can now complain of this matter in the present action." It appears that on the appeal the appellant may still have the right to make an application for taxation, under sec. 67(2) of the Legal Practitioners Ordinance (Cap.159), but she made no such application and did not suggest that the respondents' bill of costs was open to any objection. No additional evidence of any kind has been put before us to suggest that the defendants' bill of costs was in any way unreasonable or excessive and we have no doubt that the respondents are even now prepared to submit to taxation, if required. 16. It was for these reasons that we had no hesitation in dismissing with costs this appeal which, in our view, was wholly devoid of any merit whatsoever. 28th May, 1968. Representation: Basto Q.C. (J.S. & Master) for Respondent. Judgment delivered. |