DCCJ441/2004 SEKAMURA LTD v. GOLIK CONCRETE LTD - LawHero
DCCJ441/2004
SEKAMURA LTD v. GOLIK CONCRETE LTD
區域法院（民事）Deputy District Judge J. Ko3/5/2006
DCCJ441/2004
由此
A A
B DCCJ 441/2004 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CIVIL ACTION NO. 441 OF 2004
E E
--------------------
F BETWEEN F
SEKAMURA LIMITED Plaintiff
G G
and
H GOLIK CONCRETE LIMITED Defendant H
(高力混凝土有限公司)
I I
(formerly known as DYNA CONCRETE LIMITED)
J (大華混凝土有限公司) J
K K
L -------------------- L
M M
Coram: Deputy District Judge J. Ko in Court
N Dates of Hearing: 5th – 7th December 2005, 6th January 2006, 3rd February N
2006 & 14th March 2006
O O
th
Date of Handing Down Judgment: 4 May 2006
P P
JUDGMENT
Q Q
R 1. By a consultancy agreement made on 16th October 2001 R
between the Plaintiff on the one part and the Defendant (then known as
S S
Dyna Concrete Limited) on the other part (“the Consultancy Agreement”),
T T
U U
V V
由此
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A A
B the Defendant appointed the Plaintiff to provide consultancy services for a B
term of 2 years from 16th October 2001 to 15th October 2003.
C C
D 2. Under the Consultancy Agreement, the Plaintiff (as the D
consultant) undertook that it and its employee(s) deployed to the
E E
Defendant to carry out the services covered by the agreement should
F devote such of their time attention and abilities to manage and market the F
business of the Defendant as may be necessary for the proper exercise of its
G G
duties.
H H
3. The services covered by the Consultancy Agreement were set
I I
out in clause 3.1 as follows [Bundle 55-56]:
J J
“The [Plaintiff] shall manage, advise and assist the
K K
[Defendant] in respect of the day-to-day operation of
L the [Defendant] including in particular but without L
prejudice to the generality of the foregoing to be
M M
responsible for:
N N
a. managing and supervising for and on behalf of
O O
the [Defendant] in a proper and reasonable
manner and in accordance with instructions and
P P
directions given by the [Defendant] from time to
Q time; Q
b. advising and assisting the [Defendant] from time
R R
to time in respect of any projects undertaken by
S the [Defendant]; S
c. providing all administrative and technical
T T
assistance and financial management and control
U U
V V
由此
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A A
B in respect of any projects undertaken by the B
[Defendant];
C C
d. using its reasonable endeavours to promote and
D
develop to the best advantage of the business of D
the [Defendant];
E e. liaison and co-ordination with relevant E
professional architects, surveyors, engineers and
F F
relevant local authorities in the development and
G completion of any projects undertaken by the G
[Defendant];
H H
f. the day-to-day business operations of the
I [Defendant] subject to the directions of the I
[Defendant]; and
J g. informing and keeping the [Defendant] informed J
of all material transactions in connection with the
K K
business of the [Defendant] of which the
L [Plaintiff] and/or its employee(s) deployed to the L
[Plaintiff] to carry out the services has/have
M M
knowledge or is/are aware.”
N N
4. Notwithstanding the general nature of the services set out in
O O
clause 3.1, it is common ground that the Plaintiff was only required to
P provide services to the Defendant under the Consultancy Agreement upon P
the latter’s request (see paragraph 1 of the Plaintiff’s closing submission;
Q Q
and paragraph 14 of the Defendant’s closing submission).
R R
5. In consideration of the services to be rendered by the Plaintiff
S S
under the Consultancy Agreement, the Defendant agreed to pay the
T Plaintiff a consultancy fees of $50,000 per month. T
U U
V V
由此
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A A
B B
6. The Defendant paid consultancy fees for the first 19 months
C C
of the term of the Consultancy Agreement but has refused to pay for the
D last 5 months, covering the period from 16th May 2003 to 15th October D
2003.
E E
F 7. By this action, the Plaintiff claims against the Defendant for F
the outstanding consultancy fees, totalling $250,000.
G G
H 8. At the trial of this action, the Defendant maintains that the H
Plaintiff is not entitled to the consultancy fees claimed because:
I I
J a. The Plaintiff was in breach of the Consultancy J
Agreement in that none of the directors or staff members
K K
of the Plaintiff could be located or contacted by the
L L
Defendant in early 2003.
M
b. The Plaintiff failed and refused to perform its obligation M
under the Consultancy Agreement in that Mr. Mak
N N
Kau-kei Cary (“KK-MAK”) refused to assist the
O Defendant in resolving the commercial dispute between O
the Defendant and Towa Concrete Limited (“TOWA”)
P P
despite the Defendant’s request.
Q c. The onus is on the Plaintiff to prove that it was ready and Q
willing to perform the Consultancy Agreement in the
R R
relevant period as and when requested and the Plaintiff
S has failed to discharge that burden. S
T T
U U
V V
由此
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A A
B 9. The above defences will be examined one by one in the B
ensuing discussion. Before embarking on the discussion, it would be
C C
helpful to introduce the protagonists in this action.
D D
a. Ms. Chang Wei-wu (“CHANG”), who is the director of
E E
the Plaintiff.
F b. Mr. Yin Xiaoguang (“YIN”), who was the managing F
director of the Defendant at the material time. He has
G G
since resigned from being a director and is now a
H consultant of the Defendant. H
c. Mr. Ng Wai-kwok (“NG”), who is a manager of the
I I
Defendant.
J J
10. KK-MAK features significantly in this dispute. He is a
K K
chartered engineer and has extensive experience and expertise in the
L L
concrete trade. Furthermore:
M M
a. He is CHANG’s husband.
N N
b. He was a director and shareholder of the Plaintiff at the
O time of the Consultancy Agreement (i.e. 16th October O
2001). On 28th October 2002, he resigned from being a
P P
director of the Plaintiff and transferred his shares in the
Q Plaintiff to CHANG’s sister (see Bundle 73). Q
c. He had been a director of Dyna Concrete Limited, up to
R R
the time of the Consultancy Agreement.
S d. He had been an executive director of a company known S
as Express Builders Company Limited, but retired from
T T
that position in December 2001.
U U
V V
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A A
B e. His younger brother is Mr. Mak Wai-kei (“WK-MAK”). B
It is common ground that WK-MAK is the person
C C
controlling TOWA, the other director being WK-MAK’s
D son. D
E E
11. As I have highlighted above when outlining the defences,
F there is a commercial dispute between TOWA and the Defendant. The F
dispute has cumulated into another action in the District Court under DCCJ
G G
7267/2003.
H H
None of the directors or staff members of the Plaintiff could be located or
I I
contacted by the Defendant in early 2003?
J J
12. It is the Defendant’s pleaded case under paragraph 6 of the
K K
Re-Amended Defence that “the Plaintiff had since early 2003 failed and/or
L L
refused to carry out any of the services as agreed to be provided by it under
M
the Consultancy Agreement including the managing of, giving advice and M
assistance to the Defendant in respect of the day-to-day operation of the
N N
Defendant.” [Bundle 19]
O O
13. The Defendant basically repeat the terms of clause 3.1 of the
P P
Consultancy Agreement in the particulars provided under paragraph 6 of
Q the Re-Amended Defence. Q
R R
14. Despite the rhetoric allegations in paragraph 6 of the
S Re-Amended Defence, the only material fact pleaded by the Defendant in S
its defence is that “in early 2003, none of the directors nor staff members of
T T
the Plaintiff could be located or contacted by the Defendant.” (see
U U
V V
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A A
B paragraph 7 of the Re-Amended Defence [Bundle 20]). The evidence B
purportedly in support of this defence comes from YIN and NG.
C C
D 15. YIN says that in March/April 2003, he had wanted KK-MAK D
to assist in the dispute between TOWA and the Defendant. He tried to
E E
contact KK-MAK through the latter’s telephone number at Express
F Builders Company Limited and KK-MAK’s mobile telephone number but F
to no avail. He had left messages at KK-MAK’s mobile telephone but
G G
received no return call. In about April/May 2003, he instructed NG to take
H steps to contact KK-MAK. H
I I
16. According to NG, he also tried to contact KK-MAK in
J April/May 2003 through KK-MAK’s telephone numbers at Express J
Builders Company Limited [Bundle 164] as well as his mobile telephone
K K
number but again to no avail. He further called the Plaintiff’s telephone
L
number as appeared in the Plaintiff’s invoices sent under the Consultancy L
M
Agreement and left messages for KK-MAK but received no reply. M
N N
17. It must be appreciated that up to the second day of the trial the
O Defendant’s allegation that none of the directors nor staff members of the O
Plaintiff could be located or contacted remained the only material fact
P P
specifically pleaded and relied upon by the Defendant. What transpires at
Q the trial is that YIN did speak to KK-MAK over the phone in the summer Q
of 2003 and a lunch meeting with KK-MAK was eventually held.
R R
S 18. The fact that YIN managed to speak to KK-MAK and the fact S
that a lunch meeting was subsequently held were never pleaded. These
T T
facts were also not mentioned in the witness statements filed by the
U U
V V
由此
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A A
B Defendant, including the supplemental witness statement of NG filed on B
the first day of the trial.
C C
D 19. The Plaintiff filed KK-MAK’s witness statement and elected D
to call KK-MAK as a witness on the first day of the trial in response to the
E E
supplemental witness statement of NG filed by the Defendant earlier on the
F same day. The fact that there had been contacts and meeting between F
KK-MAK and YIN in the summer of 2003 was mentioned in KK-MAK’s
G G
witness statement.
H H
20. The Defendant only disclosed the existence of these
I I
successful contacts between the Defendant and KK-MAK on the second
J day of the trial by the filing of the witness statement of YIN. Prior to that, J
the Defendant had not even listed YIN as a witness.
K K
L L
21. The revelation of these successful contacts between the
M
Defendant and KK-MAK has rendered the originally pleaded defence M
somewhat insignificant. Given the fact that YIN did successfully
N N
contacted KK-MAK, the Defendant cannot really rely on the alleged
O non-availability of KK-MAK to justify subsequent non-payment of O
consultancy fees. This much is accepted by YIN under cross-examination.
P P
Q 22. In any event, the Plaintiff has all along used KK-MAK’s Q
mobile telephone number as the telephone number for the Plaintiff’s office.
R R
The number was printed in the invoices sent by the Plaintiff to the
S Defendant. The change of KK-MAK mobile number in March 2003 (as S
well as the Plaintiff’s office telephone number) was reflected in the
T T
invoices (see Bundle 142). There were telephone conversations between
U U
V V
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A A
B CHANG on the one hand and YIN or the Defendant’s financial controller B
Mr. Kwan on the other hand in which CHANG pressed for payment of
C C
consultancy fees. In the circumstances, I have much doubt on the
D assertions of YIN and NG that they did try to contact KK-MAK through D
his new mobile telephone number (which is also the Plaintiff’s office
E E
telephone number).
F F
23. There are, in my view, more fundamental reasons why this
G G
line of defence must fail.
H H
24. It must be remembered that the Consultancy Agreement was
I I
made between the Defendant on the one part and the Plaintiff on the other
J part. It was the Plaintiff (but not KK-MAK) who agreed to provide the J
services covered by the agreement to the Defendant.
K K
L L
25. It is common ground that notwithstanding the general nature
M
of the services to be provided under the Consultancy Agreement, the M
Plaintiff was only required to provide services upon the request of the
N N
Defendant.
O O
26. Clause 9.1 of the Consultancy Agreement [Bundle 59]
P P
provides that:
Q Q
“Notice may be given by any party by letter or cable
R or telex or fax message addressed to the other party at R
its respective business address for the time being…”
S S
T T
U U
V V
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A A
B 27. The Plaintiff sent monthly invoices to the Defendant during B
the term of the Consultancy Agreement. The address of the registered
C C
office of the Plaintiff as well as the Plaintiff’s telephone number and
D facsimile number were clearly printed on these invoices. The Defendant D
does not deny having received these invoices and the Defendant has paid
E E
for 19 invoices by sending cheques to the Plaintiff’s address. Be that as it
F may, it is not apparent from the Defendant’s evidence that the Defendant F
has contacted the Plaintiff by the means agreed upon under clause 9.1 of
G G
the agreement.
H H
28. All that the Defendant says it did was to try to contact
I I
KK-MAK in March/April/May 2003 through KK-MAK’s telephone
J numbers. By then, KK-MAK no longer worked for Express Builders J
Company Limited and has changed his mobile telephone number.
K K
L
29. In the premises, the Defendant’s allegation that “none of the L
M
directors nor staff members of the Plaintiff could be located or contacted M
by the Defendant” in early 2003 is simply not supported by evidence. This
N N
pleaded line of defence, therefore, must fail.
O O
Did KK-MAK refuse to assist the Defendant in resolving the commercial
P P
dispute between the Defendant and TOWA despite the Defendant’s
Q request? Q
R R
30. The new line of defence relied on by the Defendant at trial is
S that KK-MAK refused to assist the Defendant in resolving the commercial S
dispute between the Defendant and TOWA despite the Defendant’s
T T
request.
U U
V V
由此
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A A
B B
31. Put simply, the Defendant’s evidence (in terms of YIN’s and
C C
NG’s testimony) is that during the lunch meeting in Shatin, the Defendant
D requested KK-MAK to assist in resolving the dispute but KK-MAK said D
that the dispute and the Consultancy Agreement were different matters and
E E
refused to do so. This, according to the Defendant’s case, is equated with
F the Plaintiff refusing to perform its obligation under the Consultancy F
Agreement.
G G
H 32. According to KK-MAK’s testimony, the commercial dispute H
between the Defendant and TOWA was indeed raised at the lunch meeting.
I I
However, he had only been requested to ask WK-MAK to contact YIN and
J that was what he did subsequently and he further gave WK-MAK’s mobile J
number to YIN.
K K
L L
33. I have much reservation about this line of defence.
M M
34. To start with, this line of defence is not specifically pleaded.
N N
The evidence in support, from the Defendant, only came about on the
O second day of the trial in an unusual way as I have highlighted above. O
P P
35. Secondly, YIN and NG are not entirely consistent with each
Q other in their evidence on the Defendant’s request made at the meeting. It Q
is YIN’s testimony that he asked KK-MAK at the end of the meeting to
R R
submit a proposal to assist the Defendant to resolve the dispute but
S KK-MAK never came back with a proposal. This, according to YIN, was S
the reason why the Defendant did not immediately stop payment of
T T
consultancy fees to the Plaintiff after the meeting. When NG was
U U
V V
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A A
B cross-examined on this, he denied such a request having been made. NG B
even went on to explain that there was really no point for such a request as
C C
KK-MAK had outrightly refused to assist.
D D
36. Thirdly, I have grave doubt about the real basis for the
E E
Defendant’s request for KK-MAK’s assistance. It is the Defendant’s case
F that the request was made under the Consultancy Agreement and that was F
how it was put to KK-MAK at the lunch meeting. According to YIN, he
G G
told KK-MAK that it would be difficult for the Defendant to continue
H payment of consultancy fees should KK-MAK refuse to assist. KK-MAK, H
on the other hand, characterizes the request to establish contact between
I I
WK-MAK and the Defendant as a request for personal favour and not
J related to the Consultancy Agreement. J
K K
37. Under cross-examination, both YIN and NG say that
L L
KK-MAK’s assistance was requested because of the relationship between
M
KK-MAK and WK-MAK. Although they also hinted at the fact that M
KK-MAK might also contribute his experience and expertise in the
N N
concrete trade in resolving the dispute, no specifics were given. KK-MAK
O has not been involved in the business of the Defendant since the time of the O
Consultancy Agreement. There is nothing to suggest that KK-MAK had
P P
previously been involved in the dispute between TOWA and the
Q Defendant. In fact, NG had brought along documents pertaining to the Q
dispute intended for KK-MAK but the same were eventually not passed on.
R R
In those circumstances, it is difficult to see how KK-MAK could assist
S with his experience and expertise without having been provided with S
details of the dispute.
T T
U U
V V
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A A
B 38. I find KK-MAK’s testimony concerning what happened at the B
lunch meeting more believable. In particular, I do not believe that any
C C
request for assistance made by the Defendant was pursuant to the
D Consultancy Agreement. If it had been the case, the Defendant would have D
pleaded that specifically in its defence and further mentioned it in NG’s
E E
first and supplemental witness statements. The fact that all these only
F arose on the second day of the trial in the middle of KK-MAK’s F
evidence-in-chief and not at the initiation of the Defendant strongly
G G
suggests a change of course of the defence.
H H
39. Based on the testimony of KK-MAK, he has done all that was
I I
requested of him even if such request was somehow related to the
J Consultancy Agreement. There is simply no basis for the Defendant to J
accuse KK-MAK of refusing to assist.
K K
L
40. Even if I am wrong in refusing to accept the Defendant’s L
M
evidence concerning the lunch meeting, the refusal of KK-MAK to assist M
in the dispute cannot be equated with the Plaintiff refusing to perform the
N N
Consultancy Agreement. It is not disputed that the Plaintiff was entitled to
O provide services under the Consultancy Agreement through someone other O
than KK-MAK. KK-MAK did not hold any office in the Plaintiff at the
P P
material time. Had the Defendant made a formal request for services under
Q the Consultancy Agreement, the Plaintiff could have hired other personnel Q
or expert to assist the Defendant.
R R
S 41. This new line of defence therefore also fails. S
T T
U U
V V
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A A
B Whether the Plaintiff has failed to prove that it was ready and willing to B
perform the services under the Consultancy Agreement as and when
C C
requested in the relevant period?
D D
42. Even if I am wrong on all the above and that the Plaintiff had
E E
been repudiated the Consultancy Agreement (whether by not being
F available to provide service or by refusing to assist in resolving the dispute F
between the Defendant and TOWA), the Defendant has certainly not
G G
accepted the Plaintiff’s repudiation and terminated the Consultancy
H Agreement. YIN is adamant in his testimony that the Consultancy H
Agreement had been kept alive after the lunch meeting and he had been
I I
waiting for KK-MAK to come back with a proposal. This, according to
J him, is confirmed by the continued payment of consultancy fees in March J
[Bundle 141], April [Bundle 144], June [Bundle 145-146], July [Bundle
K K
147] and October 2003 [Bundle 148]. According to YIN, the decision to
L L
stop payment only came about in December 2003!
M M
43. I agree with the observation of the Plaintiff’s counsel that
N N
there is no half-way situation whereby the Defendant might keep the
O Consultancy Agreement alive and yet not pay the consultancy fees O
thereunder. If the Defendant did not terminate the Consultancy Agreement
P P
by clearly and unequivocally accepting the Plaintiff’s repudiation, it would
Q run the risk of being in breach itself were it not to perform its side of the Q
bargain by paying the consultancy fees. See the judgment of Ma JA in
R R
Chao Keh Lung Bill v. Don Xia [2003] 4 HKC 660 at 675G-767A.
S S
44. In his closing submission, Defence counsel relies principally
T T
on Miles v. Wakefield Metropolitan District Council [1987] AC 539 and
U U
V V
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A A
B submits that the Plaintiff bears the initial burden of averring and proving its B
readiness and willingness to render the services required by the
C C
Consultancy Agreement.
D D
45. In Miles v. Wakefield Metropolitan District Council, the
E E
plaintiff was a superintendent registrar of births, deaths and marriages
F appointed by the defendant council pursuant to statute. The plaintiff’s F
normal working week consisted of 37 hours, including 3 hours on Saturday
G G
morning which was the most popular time for civil weddings. The
H plaintiff’s trade union instructed all superintendent registrars to take H
industrial action by, inter alia, refusing to conduct weddings on Saturdays.
I I
The defendant made it clear that the plaintiff was not required to attend
J work on Saturdays whilst he was not prepared to undertake the full range J
of his duties. The plaintiff did as instructed by his trade union, whilst
K K
remained to be willing to work a 37-hour week and to attend his office on
L L
Saturdays. The defendant council deducted from the plaintiff’s salary
M
sums representing the 3 hours pertaining to Saturdays during the industrial M
dispute. After the industrial dispute ended, the plaintiff sued the defendant
N N
for the salary deducted. His action was dismissed at first instance but the
O Court of Appeal allowed his appeal. The defendant then appealed to the O
House of Lords.
P P
Q 46. The appeal was unanimously allowed by the House of Lords Q
and the plaintiff’s action was dismissed. The House held that there was no
R R
logical distinction between the plaintiff’s position and that of an employee
S under a contract of employment. An employee’s right to remuneration S
depended on his doing or being willing to do the work that he was
T T
employed to do and if he declined to do that work the employer need not
U U
V V
由此
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A A
B pay him. Hence, the defendant council had been entitled to deduct the B
sums in question from the plaintiff’s salary in view of his refusal to work
C C
on Saturday mornings.
D D
47. To me, this is a spectacular attempt on the part of the
E E
Defendant to avoid all the difficulties in its defence highlighted above. If
F the Defendant were right, it does not have to prove that the Plaintiff was in F
breach, it does not have to establish that it accepted the Plaintiff’s
G G
repudiation, and it does not have to plead a set-off or counterclaim and to
H substantiate its loss by evidence. All that the Defendant needs to do in H
order to succeed in this action is to sit back and let the Plaintiff tumble in
I I
proving its case. In the end, has the Defendant succeeded in turning the
J tables on the Plaintiff? I think not. J
K K
48. The main decision of the House of Lords is contained in the
L L
judgments of Lord Templeman and Lord Oliver of Aylmerton. In my view,
M
the decision hinges on what the counsel for the defendant council had M
called “the theory of interdependent obligation”.
N N
O 49. Lord Templeman articulated the theory as follows (at O
561B-C):
P P
Q “In a contract of employment wages and work go Q
together. The employer pays for work and the worker
R works for his wages. If the employer declines to pay R
the worker need not work. If the worker declines to
S S
work, the employer need not pay. In an action by a
T worker to recover his pay he must allege and be ready T
U U
V V
由此
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A A
B to prove that he worked or was willing to work. B
Different considerations apply to a failure to work by
C C
sickness or other circumstances which may be
D
governed by express or implied terms or by custom.” D
E E
50. And His Lordship concluded that (at 564H-565B):
F F
“In my opinion, wages are remuneration which must
G be earned; in a claim for wages under a contract of G
employment, the worker must assert that he worked
H H
or was willing to work … When a worker in breach of
I contract declines to work in accordance with the I
contract, but claims payment for his wages, it is
J J
unnecessary to consider the law relating to damages
K and unnecessary for the employer to rely on the K
defences of abatement or equitable set-off. The
L L
employer may or may not sustain and be able to prove
and recover damages by reason of the breach of
M M
contract for each worker. But so far as wages are
N concerned, the worker can only claim them if he is N
willing to work. The plaintiff is in no better position
O O
than a worker under a contract of employment in
P declining to work in accordance with the duties of his P
office.”
Q Q
R 51. In the words of Lord Oliver (at 570E): R
S S
“… where the employee declines to work at all for a
T particular period … then, subject to the question of T
whether the wages or salary payable are
U U
V V
由此
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A A
B apportionable on a periodic basis, I see no ground B
upon which the employee who declines to perform
C C
that condition upon which payment depends can
D
successfully sue for the remuneration which is D
dependent upon its performance.”
E E
F
52. The conclusion reached by His Lordship was that (at 574D): F
G “A plaintiff in an action for remuneration under a G
contract of employment must, in my judgment,
H H
assume the initial burden of averring and proving his
I readiness and willingness to render the services I
required by the contract (subject, no doubt, to any
J J
implied term exoneration him from inability to
K perform due, for instance, to illness).” K
L L
53. In my view, the present case is distinguishable from the
M scenario discussed in Miles v. Wakefield Metropolitan District Council. M
The so-called “the theory of interdependent obligation” does not apply to
N N
this case.
O O
54. Defence counsel has accepted that the Plaintiff need not work
P P
at all under the Consultancy Agreement unless requested by the Defendant
Q (see paragraph 14 of Defendant’s closing submission). The evidence in Q
this case reveals that the Plaintiff is entitled to consultancy fees even
R R
though it has not provided any service to the Defendant so long there was
S no request for services. In the premises, the interdependency between the S
services provided by the Plaintiff and the payment of the consultancy fees
T T
by the Defendant is premised upon the Defendant first making a request for
U U
V V
由此
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A A
B services under the Consultancy Agreement. For reasons which have been B
set out earlier in this judgment, I am not satisfied that the Defendant has
C C
requested for services under the Consultancy Agreement.
D D
55. In any event, even if Miles v. Wakesfield Metropolitan
E E
District Council can be applied, I am satisfied that the Plaintiff has proved
F that it was ready and willing to perform the Consultancy Agreement. The F
evidence shows that CHANG could all along be reached at the Plaintiff’s
G G
address and by the telephone and facsimile numbers printed on the
H invoices during the term of the Consultancy Agreement. I am not H
convinced by the Defendant’s evidence that KK-MAK had not been
I I
available. I accept the testimony of CHANG and KK-MAK that
J KK-MAK would have assisted his wife (and hence the Plaintiff) had there J
been a request for services by the Defendant under the Consultancy
K K
Agreement.
L L
M
Conclusion M
N N
56. For the above reasons, I enter judgment in this action in
O favour of the Plaintiff and against the Defendant in the sum of $250,000 O
together with interest thereon at judgment rate from the date of writ until
P P
payment.
Q Q
57. There is no reason why costs should not follow the event. I
R R
make a costs order nisi pursuant to Order 42, rule 5B(3) of the Rules of the
S District Court that the costs of this action including all reserved costs be to S
the Plaintiff to be taxed if not agreed. Unless an application has been made
T T
U U
V V
由此
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A A
B to vary the costs order nisi, the order shall become absolute 14 days after B
the decision is pronounced.
C C
D D
E E
(J. Ko)
F Deputy District Judge F
G G
Mr. Damian Wong instructed by Messrs. Benny Kong & Peter Tang
H for the Plaintiff. H
Mr. Geoffrey Chang instructed by Messrs. W.K. To & Co. for Defendant.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
B DCCJ 441/2004 B
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CIVIL ACTION NO. 441 OF 2004
E E
--------------------
F BETWEEN F
SEKAMURA LIMITED Plaintiff
G G
and
H GOLIK CONCRETE LIMITED Defendant H
(高力混凝土有限公司)
I I
(formerly known as DYNA CONCRETE LIMITED)
J (大華混凝土有限公司) J
K K
L -------------------- L
M M
Coram: Deputy District Judge J. Ko in Court
N Dates of Hearing: 5th – 7th December 2005, 6th January 2006, 3rd February N
2006 & 14th March 2006
O O
th
Date of Handing Down Judgment: 4 May 2006
P P
JUDGMENT
Q Q
R 1. By a consultancy agreement made on 16th October 2001 R
between the Plaintiff on the one part and the Defendant (then known as
S S
Dyna Concrete Limited) on the other part (“the Consultancy Agreement”),
T T
U U
V V
由此
- 2 -
A A
B the Defendant appointed the Plaintiff to provide consultancy services for a B
term of 2 years from 16th October 2001 to 15th October 2003.
C C
D 2. Under the Consultancy Agreement, the Plaintiff (as the D
consultant) undertook that it and its employee(s) deployed to the
E E
Defendant to carry out the services covered by the agreement should
F devote such of their time attention and abilities to manage and market the F
business of the Defendant as may be necessary for the proper exercise of its
G G
duties.
H H
3. The services covered by the Consultancy Agreement were set
I I
out in clause 3.1 as follows [Bundle 55-56]:
J J
“The [Plaintiff] shall manage, advise and assist the
K K
[Defendant] in respect of the day-to-day operation of
L the [Defendant] including in particular but without L
prejudice to the generality of the foregoing to be
M M
responsible for:
N N
a. managing and supervising for and on behalf of
O O
the [Defendant] in a proper and reasonable
manner and in accordance with instructions and
P P
directions given by the [Defendant] from time to
Q time; Q
b. advising and assisting the [Defendant] from time
R R
to time in respect of any projects undertaken by
S the [Defendant]; S
c. providing all administrative and technical
T T
assistance and financial management and control
U U
V V
由此
- 3 -
A A
B in respect of any projects undertaken by the B
[Defendant];
C C
d. using its reasonable endeavours to promote and
D
develop to the best advantage of the business of D
the [Defendant];
E e. liaison and co-ordination with relevant E
professional architects, surveyors, engineers and
F F
relevant local authorities in the development and
G completion of any projects undertaken by the G
[Defendant];
H H
f. the day-to-day business operations of the
I [Defendant] subject to the directions of the I
[Defendant]; and
J g. informing and keeping the [Defendant] informed J
of all material transactions in connection with the
K K
business of the [Defendant] of which the
L [Plaintiff] and/or its employee(s) deployed to the L
[Plaintiff] to carry out the services has/have
M M
knowledge or is/are aware.”
N N
4. Notwithstanding the general nature of the services set out in
O O
clause 3.1, it is common ground that the Plaintiff was only required to
P provide services to the Defendant under the Consultancy Agreement upon P
the latter’s request (see paragraph 1 of the Plaintiff’s closing submission;
Q Q
and paragraph 14 of the Defendant’s closing submission).
R R
5. In consideration of the services to be rendered by the Plaintiff
S S
under the Consultancy Agreement, the Defendant agreed to pay the
T Plaintiff a consultancy fees of $50,000 per month. T
U U
V V
由此
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A A
B B
6. The Defendant paid consultancy fees for the first 19 months
C C
of the term of the Consultancy Agreement but has refused to pay for the
D last 5 months, covering the period from 16th May 2003 to 15th October D
2003.
E E
F 7. By this action, the Plaintiff claims against the Defendant for F
the outstanding consultancy fees, totalling $250,000.
G G
H 8. At the trial of this action, the Defendant maintains that the H
Plaintiff is not entitled to the consultancy fees claimed because:
I I
J a. The Plaintiff was in breach of the Consultancy J
Agreement in that none of the directors or staff members
K K
of the Plaintiff could be located or contacted by the
L L
Defendant in early 2003.
M
b. The Plaintiff failed and refused to perform its obligation M
under the Consultancy Agreement in that Mr. Mak
N N
Kau-kei Cary (“KK-MAK”) refused to assist the
O Defendant in resolving the commercial dispute between O
the Defendant and Towa Concrete Limited (“TOWA”)
P P
despite the Defendant’s request.
Q c. The onus is on the Plaintiff to prove that it was ready and Q
willing to perform the Consultancy Agreement in the
R R
relevant period as and when requested and the Plaintiff
S has failed to discharge that burden. S
T T
U U
V V
由此
- 5 -
A A
B 9. The above defences will be examined one by one in the B
ensuing discussion. Before embarking on the discussion, it would be
C C
helpful to introduce the protagonists in this action.
D D
a. Ms. Chang Wei-wu (“CHANG”), who is the director of
E E
the Plaintiff.
F b. Mr. Yin Xiaoguang (“YIN”), who was the managing F
director of the Defendant at the material time. He has
G G
since resigned from being a director and is now a
H consultant of the Defendant. H
c. Mr. Ng Wai-kwok (“NG”), who is a manager of the
I I
Defendant.
J J
10. KK-MAK features significantly in this dispute. He is a
K K
chartered engineer and has extensive experience and expertise in the
L L
concrete trade. Furthermore:
M M
a. He is CHANG’s husband.
N N
b. He was a director and shareholder of the Plaintiff at the
O time of the Consultancy Agreement (i.e. 16th October O
2001). On 28th October 2002, he resigned from being a
P P
director of the Plaintiff and transferred his shares in the
Q Plaintiff to CHANG’s sister (see Bundle 73). Q
c. He had been a director of Dyna Concrete Limited, up to
R R
the time of the Consultancy Agreement.
S d. He had been an executive director of a company known S
as Express Builders Company Limited, but retired from
T T
that position in December 2001.
U U
V V
由此
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A A
B e. His younger brother is Mr. Mak Wai-kei (“WK-MAK”). B
It is common ground that WK-MAK is the person
C C
controlling TOWA, the other director being WK-MAK’s
D son. D
E E
11. As I have highlighted above when outlining the defences,
F there is a commercial dispute between TOWA and the Defendant. The F
dispute has cumulated into another action in the District Court under DCCJ
G G
7267/2003.
H H
None of the directors or staff members of the Plaintiff could be located or
I I
contacted by the Defendant in early 2003?
J J
12. It is the Defendant’s pleaded case under paragraph 6 of the
K K
Re-Amended Defence that “the Plaintiff had since early 2003 failed and/or
L L
refused to carry out any of the services as agreed to be provided by it under
M
the Consultancy Agreement including the managing of, giving advice and M
assistance to the Defendant in respect of the day-to-day operation of the
N N
Defendant.” [Bundle 19]
O O
13. The Defendant basically repeat the terms of clause 3.1 of the
P P
Consultancy Agreement in the particulars provided under paragraph 6 of
Q the Re-Amended Defence. Q
R R
14. Despite the rhetoric allegations in paragraph 6 of the
S Re-Amended Defence, the only material fact pleaded by the Defendant in S
its defence is that “in early 2003, none of the directors nor staff members of
T T
the Plaintiff could be located or contacted by the Defendant.” (see
U U
V V
由此
- 7 -
A A
B paragraph 7 of the Re-Amended Defence [Bundle 20]). The evidence B
purportedly in support of this defence comes from YIN and NG.
C C
D 15. YIN says that in March/April 2003, he had wanted KK-MAK D
to assist in the dispute between TOWA and the Defendant. He tried to
E E
contact KK-MAK through the latter’s telephone number at Express
F Builders Company Limited and KK-MAK’s mobile telephone number but F
to no avail. He had left messages at KK-MAK’s mobile telephone but
G G
received no return call. In about April/May 2003, he instructed NG to take
H steps to contact KK-MAK. H
I I
16. According to NG, he also tried to contact KK-MAK in
J April/May 2003 through KK-MAK’s telephone numbers at Express J
Builders Company Limited [Bundle 164] as well as his mobile telephone
K K
number but again to no avail. He further called the Plaintiff’s telephone
L
number as appeared in the Plaintiff’s invoices sent under the Consultancy L
M
Agreement and left messages for KK-MAK but received no reply. M
N N
17. It must be appreciated that up to the second day of the trial the
O Defendant’s allegation that none of the directors nor staff members of the O
Plaintiff could be located or contacted remained the only material fact
P P
specifically pleaded and relied upon by the Defendant. What transpires at
Q the trial is that YIN did speak to KK-MAK over the phone in the summer Q
of 2003 and a lunch meeting with KK-MAK was eventually held.
R R
S 18. The fact that YIN managed to speak to KK-MAK and the fact S
that a lunch meeting was subsequently held were never pleaded. These
T T
facts were also not mentioned in the witness statements filed by the
U U
V V
由此
- 8 -
A A
B Defendant, including the supplemental witness statement of NG filed on B
the first day of the trial.
C C
D 19. The Plaintiff filed KK-MAK’s witness statement and elected D
to call KK-MAK as a witness on the first day of the trial in response to the
E E
supplemental witness statement of NG filed by the Defendant earlier on the
F same day. The fact that there had been contacts and meeting between F
KK-MAK and YIN in the summer of 2003 was mentioned in KK-MAK’s
G G
witness statement.
H H
20. The Defendant only disclosed the existence of these
I I
successful contacts between the Defendant and KK-MAK on the second
J day of the trial by the filing of the witness statement of YIN. Prior to that, J
the Defendant had not even listed YIN as a witness.
K K
L L
21. The revelation of these successful contacts between the
M
Defendant and KK-MAK has rendered the originally pleaded defence M
somewhat insignificant. Given the fact that YIN did successfully
N N
contacted KK-MAK, the Defendant cannot really rely on the alleged
O non-availability of KK-MAK to justify subsequent non-payment of O
consultancy fees. This much is accepted by YIN under cross-examination.
P P
Q 22. In any event, the Plaintiff has all along used KK-MAK’s Q
mobile telephone number as the telephone number for the Plaintiff’s office.
R R
The number was printed in the invoices sent by the Plaintiff to the
S Defendant. The change of KK-MAK mobile number in March 2003 (as S
well as the Plaintiff’s office telephone number) was reflected in the
T T
invoices (see Bundle 142). There were telephone conversations between
U U
V V
由此
- 9 -
A A
B CHANG on the one hand and YIN or the Defendant’s financial controller B
Mr. Kwan on the other hand in which CHANG pressed for payment of
C C
consultancy fees. In the circumstances, I have much doubt on the
D assertions of YIN and NG that they did try to contact KK-MAK through D
his new mobile telephone number (which is also the Plaintiff’s office
E E
telephone number).
F F
23. There are, in my view, more fundamental reasons why this
G G
line of defence must fail.
H H
24. It must be remembered that the Consultancy Agreement was
I I
made between the Defendant on the one part and the Plaintiff on the other
J part. It was the Plaintiff (but not KK-MAK) who agreed to provide the J
services covered by the agreement to the Defendant.
K K
L L
25. It is common ground that notwithstanding the general nature
M
of the services to be provided under the Consultancy Agreement, the M
Plaintiff was only required to provide services upon the request of the
N N
Defendant.
O O
26. Clause 9.1 of the Consultancy Agreement [Bundle 59]
P P
provides that:
Q Q
“Notice may be given by any party by letter or cable
R or telex or fax message addressed to the other party at R
its respective business address for the time being…”
S S
T T
U U
V V
由此
- 10 -
A A
B 27. The Plaintiff sent monthly invoices to the Defendant during B
the term of the Consultancy Agreement. The address of the registered
C C
office of the Plaintiff as well as the Plaintiff’s telephone number and
D facsimile number were clearly printed on these invoices. The Defendant D
does not deny having received these invoices and the Defendant has paid
E E
for 19 invoices by sending cheques to the Plaintiff’s address. Be that as it
F may, it is not apparent from the Defendant’s evidence that the Defendant F
has contacted the Plaintiff by the means agreed upon under clause 9.1 of
G G
the agreement.
H H
28. All that the Defendant says it did was to try to contact
I I
KK-MAK in March/April/May 2003 through KK-MAK’s telephone
J numbers. By then, KK-MAK no longer worked for Express Builders J
Company Limited and has changed his mobile telephone number.
K K
L
29. In the premises, the Defendant’s allegation that “none of the L
M
directors nor staff members of the Plaintiff could be located or contacted M
by the Defendant” in early 2003 is simply not supported by evidence. This
N N
pleaded line of defence, therefore, must fail.
O O
Did KK-MAK refuse to assist the Defendant in resolving the commercial
P P
dispute between the Defendant and TOWA despite the Defendant’s
Q request? Q
R R
30. The new line of defence relied on by the Defendant at trial is
S that KK-MAK refused to assist the Defendant in resolving the commercial S
dispute between the Defendant and TOWA despite the Defendant’s
T T
request.
U U
V V
由此
- 11 -
A A
B B
31. Put simply, the Defendant’s evidence (in terms of YIN’s and
C C
NG’s testimony) is that during the lunch meeting in Shatin, the Defendant
D requested KK-MAK to assist in resolving the dispute but KK-MAK said D
that the dispute and the Consultancy Agreement were different matters and
E E
refused to do so. This, according to the Defendant’s case, is equated with
F the Plaintiff refusing to perform its obligation under the Consultancy F
Agreement.
G G
H 32. According to KK-MAK’s testimony, the commercial dispute H
between the Defendant and TOWA was indeed raised at the lunch meeting.
I I
However, he had only been requested to ask WK-MAK to contact YIN and
J that was what he did subsequently and he further gave WK-MAK’s mobile J
number to YIN.
K K
L L
33. I have much reservation about this line of defence.
M M
34. To start with, this line of defence is not specifically pleaded.
N N
The evidence in support, from the Defendant, only came about on the
O second day of the trial in an unusual way as I have highlighted above. O
P P
35. Secondly, YIN and NG are not entirely consistent with each
Q other in their evidence on the Defendant’s request made at the meeting. It Q
is YIN’s testimony that he asked KK-MAK at the end of the meeting to
R R
submit a proposal to assist the Defendant to resolve the dispute but
S KK-MAK never came back with a proposal. This, according to YIN, was S
the reason why the Defendant did not immediately stop payment of
T T
consultancy fees to the Plaintiff after the meeting. When NG was
U U
V V
由此
- 12 -
A A
B cross-examined on this, he denied such a request having been made. NG B
even went on to explain that there was really no point for such a request as
C C
KK-MAK had outrightly refused to assist.
D D
36. Thirdly, I have grave doubt about the real basis for the
E E
Defendant’s request for KK-MAK’s assistance. It is the Defendant’s case
F that the request was made under the Consultancy Agreement and that was F
how it was put to KK-MAK at the lunch meeting. According to YIN, he
G G
told KK-MAK that it would be difficult for the Defendant to continue
H payment of consultancy fees should KK-MAK refuse to assist. KK-MAK, H
on the other hand, characterizes the request to establish contact between
I I
WK-MAK and the Defendant as a request for personal favour and not
J related to the Consultancy Agreement. J
K K
37. Under cross-examination, both YIN and NG say that
L L
KK-MAK’s assistance was requested because of the relationship between
M
KK-MAK and WK-MAK. Although they also hinted at the fact that M
KK-MAK might also contribute his experience and expertise in the
N N
concrete trade in resolving the dispute, no specifics were given. KK-MAK
O has not been involved in the business of the Defendant since the time of the O
Consultancy Agreement. There is nothing to suggest that KK-MAK had
P P
previously been involved in the dispute between TOWA and the
Q Defendant. In fact, NG had brought along documents pertaining to the Q
dispute intended for KK-MAK but the same were eventually not passed on.
R R
In those circumstances, it is difficult to see how KK-MAK could assist
S with his experience and expertise without having been provided with S
details of the dispute.
T T
U U
V V
由此
- 13 -
A A
B 38. I find KK-MAK’s testimony concerning what happened at the B
lunch meeting more believable. In particular, I do not believe that any
C C
request for assistance made by the Defendant was pursuant to the
D Consultancy Agreement. If it had been the case, the Defendant would have D
pleaded that specifically in its defence and further mentioned it in NG’s
E E
first and supplemental witness statements. The fact that all these only
F arose on the second day of the trial in the middle of KK-MAK’s F
evidence-in-chief and not at the initiation of the Defendant strongly
G G
suggests a change of course of the defence.
H H
39. Based on the testimony of KK-MAK, he has done all that was
I I
requested of him even if such request was somehow related to the
J Consultancy Agreement. There is simply no basis for the Defendant to J
accuse KK-MAK of refusing to assist.
K K
L
40. Even if I am wrong in refusing to accept the Defendant’s L
M
evidence concerning the lunch meeting, the refusal of KK-MAK to assist M
in the dispute cannot be equated with the Plaintiff refusing to perform the
N N
Consultancy Agreement. It is not disputed that the Plaintiff was entitled to
O provide services under the Consultancy Agreement through someone other O
than KK-MAK. KK-MAK did not hold any office in the Plaintiff at the
P P
material time. Had the Defendant made a formal request for services under
Q the Consultancy Agreement, the Plaintiff could have hired other personnel Q
or expert to assist the Defendant.
R R
S 41. This new line of defence therefore also fails. S
T T
U U
V V
由此
- 14 -
A A
B Whether the Plaintiff has failed to prove that it was ready and willing to B
perform the services under the Consultancy Agreement as and when
C C
requested in the relevant period?
D D
42. Even if I am wrong on all the above and that the Plaintiff had
E E
been repudiated the Consultancy Agreement (whether by not being
F available to provide service or by refusing to assist in resolving the dispute F
between the Defendant and TOWA), the Defendant has certainly not
G G
accepted the Plaintiff’s repudiation and terminated the Consultancy
H Agreement. YIN is adamant in his testimony that the Consultancy H
Agreement had been kept alive after the lunch meeting and he had been
I I
waiting for KK-MAK to come back with a proposal. This, according to
J him, is confirmed by the continued payment of consultancy fees in March J
[Bundle 141], April [Bundle 144], June [Bundle 145-146], July [Bundle
K K
147] and October 2003 [Bundle 148]. According to YIN, the decision to
L L
stop payment only came about in December 2003!
M M
43. I agree with the observation of the Plaintiff’s counsel that
N N
there is no half-way situation whereby the Defendant might keep the
O Consultancy Agreement alive and yet not pay the consultancy fees O
thereunder. If the Defendant did not terminate the Consultancy Agreement
P P
by clearly and unequivocally accepting the Plaintiff’s repudiation, it would
Q run the risk of being in breach itself were it not to perform its side of the Q
bargain by paying the consultancy fees. See the judgment of Ma JA in
R R
Chao Keh Lung Bill v. Don Xia [2003] 4 HKC 660 at 675G-767A.
S S
44. In his closing submission, Defence counsel relies principally
T T
on Miles v. Wakefield Metropolitan District Council [1987] AC 539 and
U U
V V
由此
- 15 -
A A
B submits that the Plaintiff bears the initial burden of averring and proving its B
readiness and willingness to render the services required by the
C C
Consultancy Agreement.
D D
45. In Miles v. Wakefield Metropolitan District Council, the
E E
plaintiff was a superintendent registrar of births, deaths and marriages
F appointed by the defendant council pursuant to statute. The plaintiff’s F
normal working week consisted of 37 hours, including 3 hours on Saturday
G G
morning which was the most popular time for civil weddings. The
H plaintiff’s trade union instructed all superintendent registrars to take H
industrial action by, inter alia, refusing to conduct weddings on Saturdays.
I I
The defendant made it clear that the plaintiff was not required to attend
J work on Saturdays whilst he was not prepared to undertake the full range J
of his duties. The plaintiff did as instructed by his trade union, whilst
K K
remained to be willing to work a 37-hour week and to attend his office on
L L
Saturdays. The defendant council deducted from the plaintiff’s salary
M
sums representing the 3 hours pertaining to Saturdays during the industrial M
dispute. After the industrial dispute ended, the plaintiff sued the defendant
N N
for the salary deducted. His action was dismissed at first instance but the
O Court of Appeal allowed his appeal. The defendant then appealed to the O
House of Lords.
P P
Q 46. The appeal was unanimously allowed by the House of Lords Q
and the plaintiff’s action was dismissed. The House held that there was no
R R
logical distinction between the plaintiff’s position and that of an employee
S under a contract of employment. An employee’s right to remuneration S
depended on his doing or being willing to do the work that he was
T T
employed to do and if he declined to do that work the employer need not
U U
V V
由此
- 16 -
A A
B pay him. Hence, the defendant council had been entitled to deduct the B
sums in question from the plaintiff’s salary in view of his refusal to work
C C
on Saturday mornings.
D D
47. To me, this is a spectacular attempt on the part of the
E E
Defendant to avoid all the difficulties in its defence highlighted above. If
F the Defendant were right, it does not have to prove that the Plaintiff was in F
breach, it does not have to establish that it accepted the Plaintiff’s
G G
repudiation, and it does not have to plead a set-off or counterclaim and to
H substantiate its loss by evidence. All that the Defendant needs to do in H
order to succeed in this action is to sit back and let the Plaintiff tumble in
I I
proving its case. In the end, has the Defendant succeeded in turning the
J tables on the Plaintiff? I think not. J
K K
48. The main decision of the House of Lords is contained in the
L L
judgments of Lord Templeman and Lord Oliver of Aylmerton. In my view,
M
the decision hinges on what the counsel for the defendant council had M
called “the theory of interdependent obligation”.
N N
O 49. Lord Templeman articulated the theory as follows (at O
561B-C):
P P
Q “In a contract of employment wages and work go Q
together. The employer pays for work and the worker
R works for his wages. If the employer declines to pay R
the worker need not work. If the worker declines to
S S
work, the employer need not pay. In an action by a
T worker to recover his pay he must allege and be ready T
U U
V V
由此
- 17 -
A A
B to prove that he worked or was willing to work. B
Different considerations apply to a failure to work by
C C
sickness or other circumstances which may be
D
governed by express or implied terms or by custom.” D
E E
50. And His Lordship concluded that (at 564H-565B):
F F
“In my opinion, wages are remuneration which must
G be earned; in a claim for wages under a contract of G
employment, the worker must assert that he worked
H H
or was willing to work … When a worker in breach of
I contract declines to work in accordance with the I
contract, but claims payment for his wages, it is
J J
unnecessary to consider the law relating to damages
K and unnecessary for the employer to rely on the K
defences of abatement or equitable set-off. The
L L
employer may or may not sustain and be able to prove
and recover damages by reason of the breach of
M M
contract for each worker. But so far as wages are
N concerned, the worker can only claim them if he is N
willing to work. The plaintiff is in no better position
O O
than a worker under a contract of employment in
P declining to work in accordance with the duties of his P
office.”
Q Q
R 51. In the words of Lord Oliver (at 570E): R
S S
“… where the employee declines to work at all for a
T particular period … then, subject to the question of T
whether the wages or salary payable are
U U
V V
由此
- 18 -
A A
B apportionable on a periodic basis, I see no ground B
upon which the employee who declines to perform
C C
that condition upon which payment depends can
D
successfully sue for the remuneration which is D
dependent upon its performance.”
E E
F
52. The conclusion reached by His Lordship was that (at 574D): F
G “A plaintiff in an action for remuneration under a G
contract of employment must, in my judgment,
H H
assume the initial burden of averring and proving his
I readiness and willingness to render the services I
required by the contract (subject, no doubt, to any
J J
implied term exoneration him from inability to
K perform due, for instance, to illness).” K
L L
53. In my view, the present case is distinguishable from the
M scenario discussed in Miles v. Wakefield Metropolitan District Council. M
The so-called “the theory of interdependent obligation” does not apply to
N N
this case.
O O
54. Defence counsel has accepted that the Plaintiff need not work
P P
at all under the Consultancy Agreement unless requested by the Defendant
Q (see paragraph 14 of Defendant’s closing submission). The evidence in Q
this case reveals that the Plaintiff is entitled to consultancy fees even
R R
though it has not provided any service to the Defendant so long there was
S no request for services. In the premises, the interdependency between the S
services provided by the Plaintiff and the payment of the consultancy fees
T T
by the Defendant is premised upon the Defendant first making a request for
U U
V V
由此
- 19 -
A A
B services under the Consultancy Agreement. For reasons which have been B
set out earlier in this judgment, I am not satisfied that the Defendant has
C C
requested for services under the Consultancy Agreement.
D D
55. In any event, even if Miles v. Wakesfield Metropolitan
E E
District Council can be applied, I am satisfied that the Plaintiff has proved
F that it was ready and willing to perform the Consultancy Agreement. The F
evidence shows that CHANG could all along be reached at the Plaintiff’s
G G
address and by the telephone and facsimile numbers printed on the
H invoices during the term of the Consultancy Agreement. I am not H
convinced by the Defendant’s evidence that KK-MAK had not been
I I
available. I accept the testimony of CHANG and KK-MAK that
J KK-MAK would have assisted his wife (and hence the Plaintiff) had there J
been a request for services by the Defendant under the Consultancy
K K
Agreement.
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M
Conclusion M
N N
56. For the above reasons, I enter judgment in this action in
O favour of the Plaintiff and against the Defendant in the sum of $250,000 O
together with interest thereon at judgment rate from the date of writ until
P P
payment.
Q Q
57. There is no reason why costs should not follow the event. I
R R
make a costs order nisi pursuant to Order 42, rule 5B(3) of the Rules of the
S District Court that the costs of this action including all reserved costs be to S
the Plaintiff to be taxed if not agreed. Unless an application has been made
T T
U U
V V
由此
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A A
B to vary the costs order nisi, the order shall become absolute 14 days after B
the decision is pronounced.
C C
D D
E E
(J. Ko)
F Deputy District Judge F
G G
Mr. Damian Wong instructed by Messrs. Benny Kong & Peter Tang
H for the Plaintiff. H
Mr. Geoffrey Chang instructed by Messrs. W.K. To & Co. for Defendant.
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V