Centaline Property Agency Ltd v. Zhong Sheng Hong

HCMP 2577/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 2577OF 2014

(On an intended Appeal from DCCJ No. 2161 of 2012)

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BETWEEN

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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 Ho in DCCJ 2161 of 2012 given on 22 April 2014. In that judgment, the judge found after trial in favour of the Plaintiff in respect of its claim for liquidated damages in the sum of $359,760 arising from the Defendant’s wrongful termination of the sale and purchase of a property in which the Plaintiff acted as estate agent. The judge found the defendant to be a dishonest witness and rejected his evidence.

2.The Defendant applied for leave to appeal against that judgment.  Leave was refused by the judge on 3 October 2014.

3.The Defendant now applied to this court for leave to appeal, supported by skeleton submissions of 17 October 2014 prepared by his solicitor.  The application is opposed by the Plaintiff and a statement of opposition prepared by counsel was filed on 31 October 2014.

4.Most of the intended grounds of appeal of the Defendant related to the finding of facts by the judge.  The judge had already explained in his very careful and detail judgment how he assessed the relevant evidence.  The judge also explained fully in his written decision of 3 October 2014 why there is no reasonable prospect of success in the Defendant’s attempt to challenge his findings.

5.As is well known, an appellant faces a very high threshold in seeking to challenge the finding of facts by a judge.  It is not necessary for us to repeat what has been discussed in this regard in Ting Kwok Keung v Tam Dick Yuen [2002] 3 HKLRD 1.  In our judgment, the proposed grounds raised by the Defendant cannot overcome that threshold.  Most of them have been sufficiently dealt with by the judge in his written decision of 3 October.  We agree with his analysis.

6.The SMS of 9 November 2010 is self-serving and cannot be as incontrovertible as solicitor for the Defendant put it.  The ground on different versions of the agreement has no merit in view of para 29 of the judgment of 22 April 2014.

7.The refusal of the judge to allow the SMS of 11 November 2010 to be admitted as new evidence at the trial was a case management decision.  There is nothing in the submission of the solicitor for the Defendant which provides any arguable ground for this court’s interference with the discretion of the judge.

8.As regards the Defendant not requesting for a copy of the tenancy agreement at the negotiation stage, it is not implausible.  This court does not find this to be a valid ground for saying that the judge was plainly wrong in his finding of facts.

9.Solicitor for the Defendant raised a new point which had not been raised at the trial: the liquidated damages provision is a penalty.  The point was not pleaded in the Defence and its proper consideration must depend on evidence.  No good explanation has been put forward as to why the point was not run below.  The fact that the Defendant was unrepresented at the trial (though he had been represented by lawyers until shortly before trial and the pleadings were drafted by lawyers) is not a good reason.  In accordance with well settled practice, it is too late to allow this point to be run, see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356.  In any event, it is difficult to see the factual basis for this argument when it cannot be disputed that the total amount of the commission which the Plaintiff could have earned from the transaction (but for the wrongful termination of the Defendant) equals to the liquidated sum.

10.As the intended appeal has no reasonable prospect of success and we do not see any reason that leave should be granted in the interest of justice, 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.

11.We also order the Defendant to pay the costs of the Plaintiff in this application.  Regrettably, solicitor for the Plaintiff did not lodge a statement of costs in accordance with the directions of the Chief Judge notwithstanding the reminder in the letter of 20 October 2014.  Having regard to the complexity of the matter and the contents of the submissions advanced before us, we would provisionally fix the costs of the Plaintiff at $40,000.  Any party who wishes to have that provisional assessment revised may lodge written submissions (not more than 5 pages) within 5 days from the handing down of this judgment.  The other party shall have another 5 days to lodge a reply.  Parties should however note that this court will bear in mind the default of the solicitor for the Plaintiff as mentioned above in the consideration of an application for such revision, see Islamic Republic of Iran Shipping Lines v Phiniqia International Shipping LLC HCMP 2034 of 2014, 3 Nov 2014.  We may also make a separate costs order for the round of submissions on the quantum of costs, depending on the outcome in an application to revise our provisional assessment. 

Written submissions by Ms Shannon Leung, instructed by Cheung & Choy, for the plaintiff

Written submissions by May Cheng & Co, for the defendant