XCHRX MANSION SPORTS LTD. v. YIP CHI FUN

HCMP 2224/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2224 OF 2000

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REASONS FOR DECISION

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1. This is an appeal against the decision of Master Cheung allowing the Plaintiff to recover possession of the premises at Flat C, 9/F and Car Parking Space No.25, Beacon Hill Court, No.55 Beacon Hill Road, Kowloon (the said flat), from the Defendant.

2. It is not disputed that the Plaintiff is the registered owner of the said flat and that it was used or intended to be used as quarters for the staff members of the Plaintiff's group of companies.

3. The Defendant used to be the chairman of the Plaintiff's holding company and the director of the Plaintiff. The Defendant ceased to hold any post in any of the Plaintiff's group of companies as from 1 February 1999. The Defendant was asked to vacate the said flat, he refused, and hence the claim against him by the Plaintiff for possession of the said flat.

4. The Defendant, however, suggests that there has been an oral agreement or assurance given by a Mr Sze Sun Sun, the managing director of the Plaintiff's holding company that if the Defendant agrees to continue to work for the holding company, the Defendant can live in the said flat for as long as he wishes.

5. The background of case suggests that the Defendant was appointed a consultant of the Plaintiff's group of companies in September 1998 and he resigned as a director of the Plaintiff in October 1998.

6. The Defendant suggests that in reliance upon the aforesaid assurance or agreement, he moved into the said flat with his family and incurred a sum about $51,000.00 in decorating the said flat.

7. The Defendant further suggests that at the end of 1998, at the suggestion of a Mr Law Wai Chung, the deputy manager of the holding company, he resigned from the Plaintiff's group of companies and formed a consultant company to provide consultant services to the Plaintiff's group of companies.

8. It is the Defendant's contention that Mr Law again agreed that after his resignation from the Plaintiff's group of companies, he would still be their employment as the consultant company to be formed by him would be recognised as a member of the group. The Defendant suggests that Mr Law also promised him that after his resignation, he would still be receiving the same remuneration through the consultant company and that he could still occupy the said flat.

9. It is the Defendant's case that the Plaintiff's group of companies failed to honour those promises. He was not paid his remuneration. Mr Law also refused to appoint his consultant company to work for the Plaintiff's group of companies.

10. The Defendant is now a bankrupt having been so declared in January this year but he said the Plaintiff's group of companies still owed him a debt of over $10 million on top of the outstanding remuneration of about $1m.

11. In his affirmation, Mr Law flatly denies that he had agreed with the Defendant that he could live in the said flat for as long as he wished for the rest of his life.

12. At the outset, I must say, that the Defendant's suggestion that he had been promised that he could live in the said flat for as long as he wished for the rest of his life is quite startling.

13. The Plaintiff is part of a public listed company. The said flat is intended to be used as quarters for staff members of the Plaintiff's group of companies. There is no dispute that the Defendant had ceased to be employed in any capacity by the Plaintiff's group of companies and that his consultant company has not been engaged by the Plaintiff's group of companies either.

14. The Defendant's suggestion that after his resignation, he would still be considered to be in the employment of the Plaintiff's group, in my view, is plainly illogical and unbelievable.

15. If the Defendant can successfully demonstrate that his employment with the Plaintiff's group of companies had been wrongfully and/or unfairly terminated, he can, of course, recover whatever damages that he is entitled to. If the Defendant can prove that either the Plaintiff's group of companies or Mr Sze or Mr Law was in breach of any promise and/or assurance or if any of them is guilty of any misrepresentation, he would also be entitled to damages from them. The damages would, of course, include loss of benefit such as the loss of the use of a flat if that is part of the agreement.

16. I do not agree with the Defendant's suggestion put forward by Mr Wong that as long as the Defendant is willing to work for the Plaintiff's group of companies either in his personal capacity or through a consultant company, he can live in the said flat for as long as he wishes.

17. In my view, such assertion is plainly unbelievable in a commercial transaction such as the one between the Plaintiff and the Defendant in the present proceedings.

18. I have considered the facts of the case as well as counsel's submission carefully, I am not persuaded at all that there is any valid basis for interfering with the decision of the learned Master. The appeal has to be dismissed and I so order.