A Win Worldwide Ltd v. Triton Noodle Food (Global) Ltd Formerly Known As Triple Noodle & Food (Global) Ltd

DCCJ 4271/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4271 OF 2013

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D E C I S I O N

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1.As I have already stated right at the beginning of this hearing the law surrounding Order 14 has been well established, the burden is always on the defendant to show that there is a viable defence. However, it is also trite that that burden is a low one.

2.The plaintiff’s claim is fairly simple.  It is based on a written agreement.  The defendant’s affirmation in opposition raised three defences: First, in paragraph  38  of  Hui  Mei  Lai’s affirmation in opposition,  it  is stated : “ I verily believed that the consultancy agreement was not duly approved by the then Board”; Second, the same paragraph, it is also stated;

“… the Consultancy Agreement also failed to set out the services to be provided by the Plaintiff”; Third, in paragraph 42, it is stated: “the plaintiff should not be entitled to claim the summons of HK$360,000 or any at all because the Plaintiff did not discharge its duties and responsibility under the alleged Consultancy Agreement and there was no consideration provided by the Plaintiff.”

3.Now, I must look at the consultancy agreement and test it against the normal requirement of a valid,  legally enforceable contract.

4.First, was it properly executed? The agreement has no signature, it only has a stamp on it. On this point alone, it is questionable if  it is a legally enforceable contract.

5.Second, we look at the background information of the usual five items that we have to look at : who? What? Where? When? And why?

6.Let us look at who.  We have two limited companies purporting to enter into a written contract.  Who contracted with whom? We have no information on that. The information in support did not state who represented the plaintiff  limited company, negotiated with whom of the defendant limited company  to arrive at this contract. We do not know who.

7.As to what was the agreement about, there is no provision in the contract that says what was the plaintiff limited company’s duty.  It does not even have provisions for termination. So we have a problem with what.

8.And without knowing what was the plaintiff’s contractual duty, there is clearly a factual dispute on whether the plaintiff  limited company has fulfilled its duties under the purported contract and is entitled to payment.

9.All of these questions require evidence in support and are potential disputes of facts that must be decided at trial.

10.As far as the other evidence that Mr Simon Yip, counsel for the plaintiff,  raised,  all of them are mere background information that requires further thrashing-out at the trial.

11.Add to all of these, we have a person in Mr Choi Shuen Ki, who was at the relevant time,  a director for both the plaintiff defendant limited companies.  Mr Choi owes fiduciary duty to both limited companies.  His involvement, if any, in the formation of this alleged contract would have to be thrashed out at trial as well.

12.Accordingly, this is clearly not a case suitable for summary disposal. The defendant’s defence is not moonshine, given the background of the involvements between the parties and the personalities involved.

13.My order is that the Order 14 application be dismissed.

14.As far as costs is concerned, I do not see any reason why cost should not follow the event.

15.As far as the summons to adduce  Choi’s second affirmation out of time,  I do not see any reason why that costs should not be awarded  to the defendant as well. Therefore, costs of both summonses are to the defendant. And as usual, that should be taxed on a party-to-party basis if not agreed.

16.There shall be certificate for counsel.

Mr Simon Yip, instructed by K M Cheung & Co, for the plaintiff

Miss Deanna Law, instructed by D S Cheung & Co, for the defendant