DUVAL MARINE MAUD ANNE AURORE AND ANOTHER v. CHRISTIAN ANTHONY BULLEN

HCSA 49/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 49 OF 2013

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM
 NO 41903 OF 2012)

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J U D G M E N T

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I.  INTRODUCTION

1.  The defendant was the tenant of a three-bedroom flat at Flat B, 6^th floor, Lei Shun Court, Leighton Road, Causeway Bay, Hong Kong (“Premises”).  Pursuant to two written licence agreements made between the defendant and the 1^st claimant, the 1^st and 2^nd claimants occupied Room 1 and common areas of the Premises on flat-sharing basis from 18 April to 31 May 2012 and from 1 June to 31 August 2012.  Such licence was renewed for the period from 1 September to 31 October 2012, and the previous security deposit of $15,000 was appropriated for the third written licence agreement dated 23 August 2012 (“3^rd Agreement”).

2.  In early October 2012, the parties started to communicate/negotiate on renewal of the licence agreement.  There is no dispute over the emails that passed between the parties during the relevant period.

3. By email to the 1^st and 2^nd claimants on 5 October 2012, the defendant enquired inter alia whether or not they would like to renew the licence, and on the same day he placed a website advertisement for potential licensee.  In the early morning of 6 October 2012, he emailed to the 1^st and 2^nd claimants a draft licence agreement for the period from 1 November to 31 December 2012, stating that “nothing is binding on the parties until the new agreement is signed” (“Condition”). In the evening of that day, the 1^st and 2^nd claimants replied by email, saying “First thing: we will renew the contract”.  In the 1^st claimant’s email to the defendant on 9 October 2012, she referred to an unacceptable clause in the draft licence agreement, and stated that “[as] soon as you take it off, we will be keen to sign it.  Please come back with the new draft so that we organise the signing”.  On the same day, the defendant replied by email and sent the revised draft licence agreement with such provision removed, saying “I re-amend the draft agreement for your comment approval”.

4. On 15 October 2012, the 1^st and 2^nd claimants requested the defendant to further amend the draft licence agreement to change the expiry date of the new licence term from 31 December 2012 to 31 January 2013, saying that “[if] you come with the new contract we will be here to sign it straight away”.  On 16 October 2012, the defendant emailed the further revised draft agreement (with the requested change) to the 1^st and 2^nd claimants, and edited his website advertisement to change the information on room availability from 1 November 2012 to 1 February 2013.  On 18 October 2012, the defendant sent email to ask the 1^st and 2^nd claimants to check on the further revised draft licence agreement.  On 24 October 2012, the 1^st claimant emailed the defendant to say they were “[sorry] for coming back and forth about the state of the new contract”, and to clarify they had commonly decided that “we would like you to send us an agreement ending the 16^th of December. Please come back to us with a new draft so that we can provide the signature to confirm the agreement”.  On 25 October 2012, the defendant replied by email stating that the 1^st claimant was “bound by the agreement via emails to stay until the end of January 31, 2013 ……”

5. No further written licence agreement was signed.  Eventually, the 1^st and 2^nd claimants delivered vacant possession of the Premises to the defendant on 31 October 2012.

6. The 1^st and 2^nd claimants brought proceedings in the Small Claims Tribunal (“Tribunal”) claiming that the parties’ negotiations for renewal of the 3^rd Agreement did not result in any binding agreement, hence the 3^rd Agreement expired on 31 October 2012 whereupon they were entitled to refund of the security deposit ($15,000) which the defendant wrongfully retained less unpaid utility charges ($590).  They claimed for the sum of $14,410.  The defendant denied such claim, and counterclaimed for loss and damages in the sum of $12,591.

7. By the award dated 10 October 2013, (a) the defendant was ordered to pay $14,403 to the 1^st and 2^nd claimantswith costs ($5,670) and interest thereon at judgment rate from the date of the award until satisfaction, and (b) the defendant’s counterclaim was dismissed.  The Adjudicator gave brief oral reasons for her decision.  On 17 October 2013, the defendant applied for review of the Adjudicator’s decision.  At the review hearing on 4 December 2013, the Adjudicator dismissed such application and ordered the defendant to pay costs ($382) with interest thereon at judgment rate from such date to payment.

8. This is the defendant’s application for leave to appeal against the award of the Adjudicator.

II. DEFENCE AND COUNTERCLAIM

9. The defendant claimed it was the parties’ custom to agree on important terms by email before signing any licence agreement. Pursuant to his email request for confirmation of renewal of the licence, on 6-7 and 15 October 2012 the 1^st and 2^nd claimants confirmed such renewal until 31 January 2013 (either by extension of the licence term under the 3^rd Agreement until 31 January 2013 or by a new licence agreement for the period from 1 November 2012 to 31 January 2013) whereupon he amended the website advertisement to indicate non-availability of room/flat share and cancelled viewings by potential licensees.

10. Alternatively, the defendant relied on promissory estoppel in that he acted in reliance of the 1^st and 2^nd claimants’ promise/representation made during the negotiations to his detriment, and that it would be inequitable for them to go back on their word. Further alternatively, the defendant claimed the 1^st and 2^nd claimants represented to him during negotiations that they would occupy the Premises until 31 January 2013, but they well knew such representation was false or they made such representation recklessly not caring whether it was false or not.

11. The defendant claimed that in breach of contract or by reason of misrepresentation, the 1^st and 2^nd claimants failed to pay licence fees from 1 November 2012 to 31 January 2013.  He counterclaimed for loss and damages in the sum of $10,591 being outstanding licence fees ($44,250), unpaid utility charges ($597), wasted advertising charges ($176) and wasted transportation charges ($600) less licence fees paid by replacement licensee ($20,032) and the security deposit ($15,000) together with interest and costs.  Subsequently, the defendant added a further head of counterclaim being damage to the bathroom door ($1,000).

III. ADJUDICATOR’S DECISION

12. At the trial, the 1^st and 2^nd claimants and the defendant gave evidence, and they produced various documents. Insofar as the documents were concerned, there is no dispute over the emails exchanged between the parties and the three written licence agreements (including the 3^rd Agreement) signed by the parties.

13. On the issue of whether there was an agreement to extend the 3^rd Agreement up to 31 January 2013 or whether a new licence agreement was made for the period from 1 November 2012 to 31 January 2013, the Adjudicator turned to the communications/negotiations between the parties in October 2012 to ascertain whether there was any intention to create legal relations.  She traced the series of email communications described above, and noted that the essential factual dispute turned on the alleged oral communications on 23 and/or 24 October 2012.

14. The 1^st claimant said the defendant came to the Premises on/about 23 October 2012 with the draft licence agreement which he had already signed. She refused to sign and asked to change the date of expiry of the intended licence to mid-December 2012.  The defendant asked her to send him an email to keep track of the date so he could further revise the draft licence agreement. So the 1^st claimant sent an email on 24 October 2012, and immediately afterwards she telephoned the defendant to follow up. The defendant verbally agreed to change the date as requested.

15. The defendant denied such telephone conversation. He claimed the 1^st and 2^nd claimants were not at the Premises when he visited on 18 October 2012, and he dropped off hard copies of the agreement.  He heard nothing from them for a week during which time he continued to get calls from potential licensees for the room but he turned them away.

16. The Adjudicator preferred the evidence of the 1^st and 2^nd claimants to that of the defendant, noting that the 1^st claimant’s oral evidence was consistent with her witness statement.  The Adjudicator noted the call list showed the 1^st claimant did call the defendant at 19:56 on 24 October 2012 immediately after the email was sent and the conversation lasted one minute, but the defendant made no mention of such telephone call.

17. The Adjudicator did not believe the defendant’s claim that he had not heard from the 1^st and 2^nd claimants for a week after he dropped off the agreement at the Premises on 18 October 2012. “It was improbable that the Defendant did not send the Claimants any email to follow up or expedite the signing of the new agreement while on the other hand turning potential clients away. I do not believe that he was telling the truth. Therefore, on the evidence which differ between the Claimants and the Defendant, I accept the Claimants’ evidence. I find that during the telephone conversation on 24^th October, the Defendant has agreed to change the date to 16 December 2012.” [1]

18. The Adjudicator rejected the defendant’s explanation that the word “signed” in the statement “[nothing] is binding on the parties until the new agreement is signed” in his email of 6 October 2012 (ie the Condition) meant “agreed as per previous renewal” (ie previous agreements were concluded via email before the licence agreements were signed), and held that he intended not to be bound until the licence agreement was signed.  The Adjudicator further rejected the defendant’s suggestion that because the 1^st and 2^nd claimants did not respond to such statement the parties did not agree their negotiations would be conducted on non-binding basis, and she concluded the defendant’s aforesaid statement sufficed and it was unnecessary to mark the email exchanges as “subject to contract”.

19. The Adjudicator rejected the defendant’s suggestion that a new agreement was concluded by words (ie the 1^st and 2^nd claimants’ email of 9 October 2012) and conduct (ie the defendant sending the revised draft licence agreement for their comment approval) since the words “keen to sign” and “for your comment approval” did not alter the nature of the negotiations which required a binding agreement to be signed.

20. The Adjudicator also rejected the defendant’s suggestion that the new agreement already in place on 9 October 2012 was extended to 31 January 2013 by the parties’ words (ie the 1^st and 2^nd claimants’ email of 15 October 2012) and conduct (ie the defendant further revised the draft licence agreement) on 15-16 October 2012 because (a) there was no new agreement on 9 October 2012, (b) the email of 15 October 2012 merely indicated expression of readiness to sign the licence agreement as opposed to intention to be legally bound, (c) section 9 of the 3^rd Agreement required any modification to be made in writing and signed by the parties, and (d) negotiations were still ongoing on 24 October 2012.

21. The Adjudicator therefore concluded there was no binding agreement to extend the licence period to 31 January 2013 and no new licence agreement for the period from 1 November 2012 to 31 January 2013, and the 3^rd Agreement expired on 31 October 2012.

22. The defendant argued he acted in reliance of the 1^st and 2^nd claimants’ promise/representation of licence renewal to 31 January 2013 to turn away potential licensees and to postpone room availability from 1 November 2012 to 1 February 2013 for his website advertisement. On the principles stated in Luo Xing Juan v Estate of Hui Shui See [2] and Chitty on Contracts,[3] the Adjudicator noted that the doctrine of promissory estoppel was defensive in nature and created no new rights.  The Adjudicator found that in October 2012 the existing legal relationship and enforceable rights between the parties were those stipulated in the 3^rd Agreement, and new rights/duties would not arise until they entered into a new contract.  Further, the 1^st and 2^nd claimants’ alleged representation was not unequivocal, and “in the absence of certainty or contractual intention, the equitable doctrine does not operate. It does not give rise to a cause of action which lacked contractual force for want of contractual intention”.

23. The Adjudicator also rejected the defendant’s claim of misrepresentation since the alleged representation by the 1^st and 2^nd claimants was merely a statement of their wish or intention and not a statement of fact.

24. The Adjudicator accepted the defendant’s claim for unpaid utility charges of $597, but rejected his claim for damage to the bathroom door even though quantum was agreed at $1,000. In light of her conclusion that the licence expired on 31 October 2012, the Adjudicator held that the defendant was not entitled to loss of licence fees, advertisement charges and transportation expenses.  Hence, she awarded $14,403 (being return of the security deposit of $15,000 less unpaid utility charges of $597) in favour of the 1^st and 2^nd claimants.

IV. APPLICATION FOR LEAVE TO APPEAL

25. Section 28(1) of the Small Claims Tribunal Ordinance Cap 338 provides that leave to appeal may be granted where the proposed ground of appeal involves a question of law alone or is on the ground that the claim was outside the jurisdiction of the Tribunal. The threshold onus of an applicant is to show that the intended appeal has arguable grounds of appeal.

26. Further, it is trite that findings of fact by the Tribunal are generally immune from challenge as they involve no error of law unless such is perverse or irrational or where there is no evidence to support the decision or where the decision was made by reference to irrelevant factors or without regard to relevant factors.[4]

27. The defendant in seeking leave has to demonstrate that his grounds of appeal are arguable.[5]

28. In the Application for Leave to Appeal, the defendant raised six grounds of appeal. They are:

“1. The Learned Adjudicator erred in law in holding that there was no contract between the Claimants and the Defendant for occupation from November 1, 2012 to January 31, 2013.

2. The learned Adjudicator erred in not properly investigating the events surrounding a phone call made on October 24, 2012 to the Defendant from the Claimants and erred in holding that this phone call was significant.

3. The learned Adjudicator erred in attaching too much weight to hearsay evidence that was contradicted by written evidence.

4. The learned Adjudicator erred in law and failed to properly apply the principle of promissory estoppel and further failed to properly investigate the element of reliance that the defendant had on the claimant’s statements, representations and conduct.

5. The learned Adjudicator erred in attaching too much weight to the Claimants’ evidence and not properly applying the balance of probabilities evaluation test.

6.      Further and other grounds.”

29. In his written submissions dated 4 February 2014 and his oral submissions at the hearing on 6 February 2014, the defendant raised further contentions and challenged many paragraphs of the Adjudicator’s Reasons for Decision by inter alia giving explanations for the various emails and suggested how they should be read and interpreted, and submitting on the weight to be attached to the evidence before the Adjudicator.  In my view, they are not matters of law but matters of fact for the Adjudicator, and they do not constitute arguable grounds of appeal.  I have carefully considered those submissions, and the fact that I do not expressly set out all such arguments in this Decision does not mean that I have not considered them.

30. The defendant suggested that the parties were in contractual relation since March 2012, so it was an inappropriately high threshold for the Adjudicator to hold that it was necessary to look into the negotiations/communications in order to ascertain whether there was any intention to create legal relations.  There is no merit to this argument. Plainly, the Adjudicator was referring to the intention to create legal relations for the period after the expiry of the 3^rd Agreement, and it must be appropriate to look at the parties’ interactions to ascertain whether there was any such intention.  I agree with the Adjudicator that the essential matter for determination in this case was whether there was clear evidence of intention to create legal relations between the parties over licence renewal.

31. The real difficulty that the defendant faced was his email dated 6 October 2012 in which he sent a draft new licence agreement and set out the Condition, ie “[nothing] is binding on the parties until the new agreement is signed”.  The Condition spelt out in longhand the intention that nothing was binding until the execution of the written agreement. Significantly, the Condition was complemented by Section Eight of the draft new licence agreement that accompanied the email (which email contained the Condition) that provided as follows:

“SECTION EIGHT.

ENTIRE AGREEMENT

This agreement constitutes the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this agreement shall not be binding on either party except to the extent incorporated in this agreement.” (my emphasis)”

32. Throughout the negotiations there was no objection to or resiliation from either the Condition or Section Eight of the draft agreement.  Indeed, the defendant’s case was that the parties (including the 1^st and 2^nd claimants) had reached understanding on the terms of the contract which necessarily included Section Eight of the draft agreement.  It is therefore plain that the express basis as made known to and as understood by the 1^st and 2^nd claimants and upon which the defendant had dealt with them was the contemplation that there should be no legal liability on either party until formal signing of the agreement.  It must therefore follow (and it is also evident from the words “[nothing] is binding on the parties ……” (my emphasis)) that either party was free to withdraw from the proposed new licence.  Although the Condition was not repeated in the subsequent emails, there was no evidence that the clearly stated Condition which the defendant himself imposed and made known to and as understood by the 1^st and 2^nd claimants had been waived or expunged in any of the subsequent emails or oral communications between the parties. This therefore formed the basis for the ensuing negotiations between the parties throughout October 2012.

33. The defendant suggested that since the negotiations were not marked with “subject to contract” which was a common term in Hong Kong any contract resulting from the negotiations would be binding on the parties when the contractual intention was clear and the terms were agreed.  This argument may have some merit if the negotiations were totally unqualified, but here such argument loses attraction since it was the defendant who from the very beginning imposed (and made known to the 1^st and 2^nd claimants) that the negotiations would be on the basis of the Condition that the nothing shall be binding on the parties until the new agreement was signed.  Whilst “subject to contract” is common term, there is nothing to prevent any negotiating party from spelling out such condition in longhand as the defendant did here.

34. I should point out there is nothing unfair about the Condition for either party (and not just the 1^st and 2^nd claimants) is free to withdraw before the final act of signing the new licence agreement.  The suspensive effect of the Condition reflected in the words “[nothing] is binding on the parties ……” (my emphasis) is based on reasonable mutuality in the right of withdrawal.  Had it been the defendant rather than the 1^st and 2^nd claimants who eventually did not wish for licence renewal despite promising negotiations or even mutual understandings, he could equally rely on the Condition to decline such renewal at any time before the new agreement was signed by both parties.

35. The defendant argued that since his email of 6 October 2012 the parties had moved on with their negotiations, and all terms of the new licence had been agreed.  He suggested that the parties did not consider the signing of the new agreement to be a condition precedent for a contract to be made.  He claimed that a new licence was concluded as all the terms had been agreed by 15 October 2012 and he had delivered two agreements (signed by him) to the Premises at the request of the 1^st and 2^nd claimants who were also ready to sign (and such readiness to sign was “part of the conduct of the parties forming a contract”).  The defendant claimed a contract was in place by 15 October 2012, and asked rhetorically what more was required since there was nothing further to negotiate after that date.

36. In my view, such arguments missed the suspensive effect of the Condition. I have no doubt that the parties negotiated and acted in the contemplation or expectation that a new legally binding licence agreement would eventually be reached, but it did not alter the basis upon which the parties were dealing with each other (ie the Condition).  The reservation in the Condition created the certainty that neither party would be committed unless he/she agreed to be legally bound by signing the new written agreement.  Hence, even if the parties conducted negotiations in language which assumed that the licence would be renewed, or the parties had reached a satisfactory conclusion on all the essential terms of the new licence, or there was nothing further to negotiate between the parties, or the parties have reached agreement in principle, it merely reflected that the parties were expecting and working towards a legally binding concluded deal, but under the umbrella of the Condition it does not mean the suspensive effect of allowing either party to exercise his/her freedom to withdraw before the signing of the new agreement is therefore displaced.

37. Indeed, the Condition was consistent with the fact that all along the parties’ contractual relationship as licensor/licensee was governed by express terms under three written licence agreements signed by the parties.  Significantly, in all three written licence agreements between the parties there was an entire agreement clause in the same terms as Section Eight of the draft new licence agreement set out in paragraph 31 above.  Such provision made it abundantly clear that all along the parties regarded the written licence agreements signed by the parties as the binding contracts between them to the exclusion of prior negotiations and understandings, which sat well with the Condition imposed by the defendant for the purpose of the subject negotiations between the parties.  This also explodes the defendant’s suggestion that it was the parties’ custom to come to binding agreement on the important terms by email before signing any licence agreement.  As explained above, even if the parties reached consensus in principle, it would not contradict and conflict with the express understanding on which dealings between the parties had been conducted that neither party was required to contract and each remained able to withdraw until the necessary new agreement had been signed.

38. The defendant suggested that the 1^st and 2^nd claimants’ email dated 6 October 2012 that stated “[first] thing: we will renew the contract” was an unequivocal offer to renew the licence that overcame the defendant’s earlier email of 6 October 2012 containing the Condition. As explained above, the 1^st and 2^nd claimants’ wish to renew the licence is not inconsistent with and did not alter the basis for negotiations imposed by the defendant that both parties would not be bound until the new licence agreement was signed.

39. The above observations also apply to the defendant’s suggestions that the new agreement was in place as a result of emails exchanged between the parties on 9 and 15 October 2012 and the defendant dropping off the further revised licence agreement that he had signed at the Premises, or that there was readiness to sign the new agreement by that time with all terms agreed.

40. The defendant also suggested that “[there] was an implied term in the agreement that time was of the essence. Attempting to force a last minute change on the Defendant and then threatening to leave at the end of October is clearly not right”.  But such argument begs the question as to whether there was a binding agreement over licence renewal in the first place.  By the use of the reservation in the Condition, the defendant required (and he made this plainly known to the 1^st and 2^nd claimants) that the signing of the new agreement would be a condition of the bargain they might have reached, and there would be no enforceable contract while that condition remained unfulfilled.

41. More importantly, given the Condition that was expressly and unambiguously spelt out in longhand in the defendant’s email of 6 October 2012 (and the parties had no dispute over the emails exchanged between them), this is not a point of law that would support an arguable ground of appeal. I am not persuaded that the Adjudicator had erred at all in giving effect to the Condition.

42. That being the case, there is also no basis to suggest that equity could interfere under the doctrine of promissory estoppel.  I am not persuaded that in the present context equity co-existed with the Condition (until it had been clearly and unequivocally expunged of which there was no such evidence) that the parties’ negotiations should be without binding legal effect until the new agreement was signed.  Given the Condition imposed by the defendant which formed the basis for the parties’ negotiations and which was apt to preclude the creation of a binding contract until the new agreement was finally signed, the words and conduct by the 1^st and 2^nd claimants indicating their wish to renew or even their understanding on the essential terms of the proposed licence could not be said to have led to a reasonable expectation or belief that they would not resile from such wish or understanding.  I agree with the Adjudicator that one cannot disregard the Condition that afforded the parties the right not to be bound even if, as the defendant claimed, by 15 October 2012 he confidently expected the parties would proceed to sign the new agreement.

43. I also agree with the Adjudicator’s observations on the requirements for the operation of the doctrine of promissory estoppel.  On the above analysis, legal rights in relation to any licence renewal for the period from 1 November 2012 to 31 January 2013 were still prospective in nature and would not materialise until the new agreement was signed.  The 3^rd Agreement merely concerned parties’ rights in relation to the licence that would expire by the end of the October 2012.  Therefore, there could not have been (a) any promise or representation by the 1^st and 2^nd claimants that they would not enforce against the defendant their strict legal rights (especially when any such rights at best related to a prospective legal relationship), or (b) any intention on their part that the defendant would rely on the representation.  Given the fetters that the defendant imposed on the negotiations by way of the Condition, there is no arguable basis at all to suggest he was encouraged to believe the 1^st and 2^nd claimants would not withdraw any understanding reached prior to signing the new agreement if they felt it necessary to do so.

44. In my view, the same considerations apply to the defendant’s misrepresentation argument since any alleged representation cannot be an unequivocal statement of intention to be bound when made under the umbrella of the Condition.

45. In such circumstances, the defendant’s other arguments (including his contentions that the Adjudicator made errors of fact and evidence) cannot avail him.

46. In respect of the factual dispute over the alleged oral communications on 23 and 24 October 2014, one of the disputed events was the date when the defendant brought along the new licence agreement (already signed by him) to the Premises. He said he did so on 18 October 2012 (when the 1^st and 2^nd claimants were not at the Premises), but the 1^st claimant said it was on 22 or 23 October 2012 when she refused to sign and asked for change of the expiry date of the new licence term to mid-December 2012.

47. It was said that the 2^nd claimant’s email of 15 October 2012 that (a) noted the defendant was to go to the Premises the following day, (b) asked the defendant to change the expiry date of the new licence term in the “new contract” from 31 December 2012 to 31 January 2013, and (c) stated “[if] you come with the new contract we will be here to sign it straight away as we will both be at home” plainly showed it was the 1^st and 2^nd claimants who invited the defendant over to the Premises with the new licence agreement. It was further said that the 2^nd claimant admitted in evidence the defendant went to the Premises on 18 October 2012 when the 1^st and 2^nd claimants were not there.[6]  The defendant claimed that the Adjudicator failed to consider (i) such matters in rejecting his evidence that he visited the Premises on 18 October 2012, and (ii) why the 1^st and 2^nd claimants (who were absent from the Premises that day) knew of his visit if he had not dropped off the new licence agreements on that occasion for them as he claimed.

48. The defendant also complained that the Adjudicator’s rejection ofhis denial of the alleged oral communications on 23 and 24 October 2012 on the basis it was improbable that he did not send the 1^st and 2^nd claimants any email follow up or expedite the signing of the new agreement. He submitted that such conclusion was premised on a fundamental error of fact, and that in fact there was no further email between the parties until the 1^st claimant sent her email to him on 24 October 2012 and he sent the next email on 25 October 2012 insisting that the 1^st and 2^nd claimants were bound to stay on until 31 January 2013.[7]

49. But, in my view, even if there is arguable basis to suggest that the Adjudicator’s findings of fact in respect of the matters in paragraphs 47-48 above are liable to be impugned, it does not overcome the suspensive effect of the Condition as explained above.  Even if the 1^st and 2^nd claimants’ case in respect of the oral communications from 22 to 24 October 2012 were rejected, and the defendant’s case set out in paragraph 15 above were accepted, it still would not have availed the defendant when the parties’ negotiations were carried out and/or they reached understanding under the umbrella of the Condition, and the 1^st and 2^nd claimants exercised their right to withdraw before their signing of the new licence agreement.

50. The defendant also complained that the Adjudicator failed to consider various facts and possibilities over the alleged telephone call on 24 October 2012, eg the possibility that it might be a missed call, the improbability of there being a telephone discussion in the absence of previous telephone calls since April 2012, the fact that the parties usually communicated by email, etc.[8]  He also complained that the Adjudicator seemed to overlook the testimony of the 1^st and 2^nd claimants on 19 August 2013 at 3:49:53 pm and 4:07:50 pm which showed it was unclear what was actually agreed at the alleged meeting on 22 or 23 October 2012. In my view, the defendant is treading on thinner ground since these criticisms touch on the weight of the evidence on the veracity of assertions of fact, which were essentially questions of fact for the Adjudicator. But in my view and more importantly, there is no utility in such challenges by the defendant given the clear and express reservation by way of the Condition that stipulated the signing of the new agreement would be a condition of the bargain, and that there would be no enforceable contract whilst such condition remained unfulfilled.

51. I have carefully considered the other grounds set out in the Application for Leave to Appeal and in the defendant’s written and oral submissions.  I am not persuaded that they satisfy the threshold test for granting leave to appeal and, more importantly, they are unable to surmount the above analysis.

52. For the reasons indicated above, the application for leave to appeal is refused.