Chung Hing To, Raymond and Another v. Tse Yuen Hang and Others

HCA 1046/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1046 OF 2011

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J U D G M E N T

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Introduction

1.Today is the date fixed for the trial of this action.  When the trial was called on, the plaintiffs did not appear. Indeed, the plaintiffs have failed to appear at the Pre-trial Review, which was held on 18 March 2014.

2.In the circumstances, the defendants are entitled to judgment dismissing the plaintiffs’ claim, and the 3^rd defendant may proceed to prove its counterclaim, so far as the burden of proof lies on the 3^rd defendant [see: Practice Note 35/1/1 of the Hong Kong Civil Procedure 2014]. 

Bankruptcy of the 1^st-named Plaintiff

3.The defendants discovered today through a bankruptcy search that the 1^st-named plaintiff, Mr Chung Hing-to Raymond, was adjudged bankrupt on 21 May 2014.

4.Under section 12(1) of the Bankruptcy Ordinance, Cap 6, after the making of a bankruptcy order, no creditor to whom the bankrupt is indebted in respect of any debt provable in bankruptcy shall proceed with any action or other legal proceedings, unless with the leave of the court.

5.Obviously, no leave has been obtained by the 3^rd defendant to proceed with its counterclaim against the 1^st-named plaintiff.  In the circumstances, the 3^rd defendant applied for leave to discontinue its counterclaim against the 1^st-named plaintiff and chose to only proceed against the 2^nd-named plaintiff today.  Pursuant to Order 21, rule 3(1) of the Rules of the High Court, I order that the counterclaim by the 3^rd defendant against the 1^st-named plaintiff be discontinued, with no order as to the costs of the counterclaim as between the 3^rd defendant and the 1^st‑named plaintiff.

The 3^rdDefendant’s Counterclaim

6.On or about 13 February 2011, the plaintiffs appointed the 3^rd defendant to act as their agent on commission to introduce a purchaser for the premises known as Flat B2, 25^th Floor, and Car Park Space no 20 on G/F 3 of Grandview Tower, Nos 126-128 Kennedy Road, Hong Kong (“the said Premises”).

7.Through the assistance of the 3^rd defendant, the plaintiffs, the 3^rd defendant and the purchasers entered into a Preliminary Agreement dated 18 February 2011, whereby the plaintiffs agreed to sell and the purchasers agreed to purchase the said Premises at the price of HK$10.8 million.

8.Clause 11 of the Preliminary Agreement provides, inter alia, that the plaintiffs shall pay the 3^rd defendant a commission of HK$54,000 not later than 18 April 2011 for services rendered by the 3^rd defendant.

9.The sale and purchase of the said Premises under the Preliminary Agreement was completed on 18 April 2011.

10.By reason of the matters aforesaid, the 3^rd defendant claims that there has become due and owing to the 3^rd defendant by the plaintiffs a sum of HK$54,000 being the outstanding commission.

11.Despite repeated requests and demands by the 3^rd defendant, the plaintiffs have failed and/or refused to pay the said sum of HK$54,000 or any sum at all.

12.From the unchallenged evidence of the 3^rd defendant’s witnesses, Mr Wong Sai-kwong and Ms Tse Yuen-hang Carly, I am satisfied that the 3^rd defendant has proved its counterclaim against the 2^nd‑named plaintiff, Ms Yip Wai-nar, as pleaded in its Amended Defence and Counterclaim filed in this action.

Order

13.For the reasons stated above, I make the following order:-

(1) The plaintiffs’ claim herein against the 1^st to 3^rd defendants be dismissed.

(2) The 2^nd‑named plaintiff do pay the 3^rd defendant the sum of HK$54,000.

(3) The 2^nd‑named plaintiff do pay the 3^rd defendant interest on the said sum of HK$54,000 at the Judgment Rate from the date hereof until payment in full.

(4) The costs of the plaintiffs’ claim in this action be to the defendants, such costs are to be taxed if not agreed.

(5) The costs of the 3^rd defendant’s counterclaim in this action be paid by the 2^nd‑named plaintiff to the 3^rd defendant, such costs are to be taxed if not agreed.

The plaintiffs did not appear

Ms Shannon Leung, instructed by Cheung & Choy, for the 1^st to 3^rd defendants