LAI MEI CHUN SWANA v. LAI & SON CO LTD

HCA 401/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 401 OF 2009

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BETWEEN

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J U D G M E N T

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Introduction

1.  This is a sad and unhappy case.  It involves a dispute between siblings over a relatively small amount of money which forms part of the expenditure incurred by way of medical fees for the care of a brother suffering from ill-health.  The case should never have reached the doors of the court, let alone resulted in a 4-day trial with two Counsel on each side.

The Claim

2.  By her Statement of Claim the Plaintiff claims against the Defendant the sum of $2,021,317.50 plus interest and costs on the basis of an oral agreement allegedly entered into between the Plaintiff and the Defendant on 20 September 2005 at Flat D, 9^th Floor, Earl Gardens, No. 1, Earl Street, Kowloon Tong, Hong Kong (“Earl Gardens”).  In the course of his opening, Mr. Paul Lam, Counsel for the Plaintiff, made it plain that the Plaintiff would limit her claim to a lesser sum, namely, the sum of $2,015,707.30, as a result of a minor arithmetic deviation in calculation involving a sum of $5,611.20.

Background

3.  The case involves various members of the same family. The father in the family was Mr. Lai Fook (“the Father”) who died on 4 February 1995.  The Father had two ladies in his life.  The first lady was his wife, Madam Wong Ying (“the Mother”).  She died on 22 March 1989.  She had the following children by the Father: -

(i) Lai Mei Har (daughter);

(ii) Lai Mei Ling (daughter);

(iii) the Plaintiff (daughter);

(iv) Lai Chung Kong (son) (“Kong”);

(v) Lai Mei Lin (daughter);

(vi) Lai Chung Fai (son) (“Fai”);

(vii) Lai Chung Fat (son) (“Fat”);

(viii) Lai Chung Kwan (son) (“Kwan”);

(ix) Lai Chung Hei (son) (“Hei”).

The second lady in the Father’s life was a Madam Wong Kiu. She bore three children for him who do not really feature in this case. The status of Madam Wong Kiu and her three children is not important for the purpose of this case.

4.  The Defendant company was established by the Father in 1976.  It has been an investment company holding real properties and other assets.  It collects very substantial rental income from its real properties.  It was intended by the Father to be a source of income for himself and his sons by his wife, the Mother.  At all material times, the issued shares of the Defendant consisted of 80,000 ordinary shares of $100 each.  The shareholders were: -

(i) the Father, holding 10,000 shares;

(ii) Kong, holding 14,000 shares;

(iii) Fai, holding 14,000 shares;

(iv) Fat, holding 14,000 shares;

(v) Kwan, holding 14,000 shares and

(vi) Hei, holding 14,000 shares.

The directors were and are : -

(i) Kong;

(ii) Fai and

(iii) Fat.

The secretary was and is Fai.

5.  According to the Will of the Father, his 10,000 shares were to be distributed equally amongst Kong, Fai, Fat, Kwan and Hei, although the relevant formalities regarding probate have not been completed.

6.  The Father also started another company by the name of Kwong Tak Investment Limited in which his sons and daughters have shares.  That company does not feature in this case.

7.  The Plaintiff is a stock broker and carries on business together with her husband through a company by the name of Full Win Securities Limited (“Full Win”).

8.  Kwan received his tertiary education in England.  In about the early 1990’s, he returned to Hong Kong and began to work in Full Win as a compliance officer when he was about 30 years old.  His relationship with his elder sister, the Plaintiff, had always been very good.

9.  The other sons by the Mother, namely, Kong, Fai, Fat and Hei, have always been in the fruit business.  Kong emigrated to Los Angeles in the United States in 1994 and has been carrying on a fruit export business.  Fai, Fat and Hei have been carrying on the fruit import business in Hong Kong.

10.  On 25 March 2005, Kwan suffered a stroke and was admitted to St. Teresa’s Hospital.  He was left partially paralysed and had other problems such as diabetes and kidney disease.  He went in and out of various hospitals and had to have constant nursing care both at home and in hospital until his death in the Hong Kong Baptist Hospital on 11 December 2008.  During the 3½ years before his death, he had incurred medical expenses of just below $6 million.  We are concerned with part of those medical expenses in this case.

The Plaintiff’s Case

11.  It is the Plaintiff’s case that at a meeting (“the Meeting”) at Earl Gardens in the morning of 20 September 2005 between her and Kong in the presence of Fai and Kwan, an oral agreement was arrived at between her and Kong representing and acting on behalf of the Defendant in relation to the medical expenses incurred and to be incurred for Kwan on the following terms: -

“(1) someone would have to pay the bills for medical treatments of Kwan first;

(2) upon the production of receipts by that someone to the Defendant, the Defendant would reimburse him or her for the money that he or she had paid out of the benefits to which Kwan was entitled from the Defendant;

(3) the Plaintiff would be the one who would pay the bills for medical treatments of Kwan first; and

(4) Kwan would then be indebted to the Defendant for the payments that the Defendant would make to the Plaintiff by way of reimbursements.”

(See Statement of Claim paragraph 10)

12.  The Plaintiff alleges that, in reliance on and pursuant to the alleged agreement, she continued to pay the expenses for medical treatments of Kwan.  “Such payments, and the payments of the expenses for medical treatments of Kwan that the Plaintiff made prior to the Agreement, were made by the Plaintiff either by way of cash or by way of cheques drawn by Full Win.”  She made payments in the total sum of $5,793,686.30.  The Defendant has only reimbursed her to the extent of $3,772,368.80, thus leaving a balance of $2,021,317.50 (reduced to $2,015,707.30 as referred to in paragraph 2 above) which she claims.  (See Statement of Claim paragraphs 11–14)

The Defence Case

13.  The case of the defence is that the Meeting was merely an informal family gathering which was held at the request of Kwan for the purpose of discussing how his medical expenses could be defrayed and that no agreement of any sort was arrived at.  The sums which were paid by the Defendant towards the medical expenses of Kwan were merely loans by the Defendant to Kwan.  The Defendant is under no legal obligation to pay anything to the Plaintiff.

The Issue

14.  The only main issue in the case is what happened at the Meeting, whether any agreement was arrived at between the Plaintiff and the Defendant on that occasion and, if so, what the terms of the agreement were.

My Finding

15.  Having reviewed all the oral and documentary evidence, I have no difficulty in rejecting the Plaintiff’s claim.  I find as a fact that no agreement was arrived at between the Plaintiff and the Defendant at the Meeting as alleged by the Plaintiff or at all.  I shall set out my main reasons below.

The Events Leading Up To The Meeting

16.  In the morning of 5 March 2005, the Plaintiff was notified by the maid working at Earl Gardens where Kwan was living with Fai and another sister that Kwan was not feeling well.  She immediately telephoned Fat and Fai to ask them to go to see Kwan.  Eventually, Kwan was admitted to St. Teresa’s Hospital.

17.  There seems to be some dispute as to who decided that Kwan should be taken to St. Teresa’s Hospital.  On the Plaintiff’s own evidence, she was well acquainted with some of the doctors at that hospital including the Superintendent.  She telephoned and spoke to Dr. Wong Chi Ming, the Superintendent.  I find as a fact that it was her idea and on her instruction that Kwan was sent to that hospital.

18.  After Kwan was admitted to the hospital, Fai was asked to sign a form to act as guarantor for Kwan’s hospital fees.  Kwan had to undergo surgery after which he was admitted to the Intensive Care Unit.  Kwan was not discharged from hospital until September 2005.

19.  According to Fat’s evidence, during the early part of Kwan’s stay in hospital, the Plaintiff insisted that Kwan should stay in a 1^st class private room, be treated by a number of specialists and have 24-hour nursing care.

20.  Because of the closeness of the family, the brothers decided to help Kwan by causing the Defendant to make an ex gratia payment in the sum of $157,761.00 to Kwan so as to help settle the medical expenses incurred between 5 and 16 March 2005.

21.  By the end of April 2005, Kwan had already incurred medical expenses to the tune of about $1 million and they were continuing at the rate of $15,000.00 per day.  The brothers became increasingly concerned about Kwan’s ability to afford the high medical fees, given the expectation that he would require treatment for quite a long time.  The Plaintiff, however, insisted that Kwan should maintain the same level of treatment and care.  There ensued a dispute between the Plaintiff and the brothers.  The brothers then decided that they would not support Kwan’s incurring such high medical fees.

22.  On 18 May 2005, Fat issued a letter in Chinese (“the Open Letter”) addressed to all the children by the Mother (and their respective spouses) referring to the illnesses of Kwan, his high level treatments and high expenditure and asking whether any sibling was willing to help Kwan and shoulder such expenditure.  He further said that if by 21 May 2005 no sibling was willing to shoulder such expenses, then, as a result of a discussion with Kwan on 12 May, the only course would be for the Defendant to make a loan to Kwan to defray the expenditure.  No sibling gave any response.

23.  It is to be noted that the Plaintiff has admitted seeing a copy of the Open Letter on the table at the hospital on 18 May 2005.  She however says that she had forgotten about the same until this was brought up by the defence.  In any event, she says that, because she and her husband were busy taking care of Kwan in 2005, she did not care to find out about the contents of the Open Letter.  I do not find that answer credible.

24.  On 17 June 2005, Fai signed a form with the hospital to terminate his guarantee for the hospital fees of Kwan.

25.  On about 18 June 2005, the Plaintiff arranged for Kwan to be moved to a 3^rd class room where he stayed until his discharge on 17 September 2005.  The medical expenses for period between 17 June and 17 September 2005 were paid by the Plaintiff or her company, Full Win.

26.  According to the Plaintiff, she never insisted that Kwan should stay in a 1^st class room or that he should receive the highest level of treatment and care.  In cross-examination, she says she did not know the reason why the Defendant suddenly refused to continue payment of Kwan’s medical expenses nor did she explore the same.  She says that even in the witness-box she still did not know the reason.  Again, I do not accept the Plaintiff’s evidence in this regard.  I find her to be an evasive witness.  I take the view that she was fully aware of the reason why the brothers decided not to support Kwan by helping him to pay his medical expenses.

27.  According to Fat, at the request of Kwan, the Defendant held an EGM at St. Teresa’s Hospital on 10 August 2005 during which a resolution was passed for the Defendant to lend the sum of $1,567,645.00 to Kwan to settle his medical expenses incurred from the date of his first admission to hospital until 17 June 2005.  The resolution has been produced in evidence.  It bears the signatures of all the attendees, namely, Fat, Kong (as represented by Fat), Fai, Hei and Kwan himself.  It has annexed to it the details of the medical expenditure incurred by Kwan.  It also records the fact that Kwan had indicated to the board of directors of the Defendant that he agreed to repay the loan by setting off the future salaries, bonuses and dividends due from the Defendant to him.

28.  There is also produced in evidence a copy of a loan agreement dated 10 August 2005 for the said sum of $1,567,645.00 which sets out the method of repayment referred to in paragraph 27 above signed between Fat representing the Defendant and Kwan and witnessed by Hei.

29.  The Plaintiff challenges the authenticity of the said resolution and loan agreement and Fat’s evidence about the same.  With a view to supporting her challenge, the Plaintiff said, inter alia, the following in her Supplemental Witness Statement dated 19 October 2010: -

“4. 答辯書亦提及約於2005年8月10日左右，被告人再次向黎松坤提供$1,567,645。此金額被記錄為被告人向股東黎松坤借出的貸款，而貸款是以支付他當時的醫藥費。被告人更聲稱股東已經於當天通過一份股東議決支持此貸款。

5. 被告人的陳述絕不真確。首先，大約在2005年6月18日左右，我私下安排黎松坤在同一間醫院轉病房，而此轉房消息我並未通知被告人的代表(即黎松江，黎松輝和黎松發)。我亦要求醫院方面保密有關轉房消息(包括對他們3位保密)。

6. 安排黎松坤轉病房的原因，是因為當時黎松坤的私家看護公司Turbopower HK Ltd 的費用未找，而他們不斷派代表到黎松坤病房“追數”。我擔心此舉會不利黎松坤的病情，便要求醫院秘密地安排轉房。

7. 被告人的代表(即黎松江、黎松輝及黎松發)只於黎松坤出院後(約2005年8月尾9月初)才跟黎松坤再有接觸，因此被告人不可能於2005年8月10日與黎松坤有任何協議。

8. 再者，我清楚記得黎松輝於2005年7月左右離開香港，直到2006年7月20日左右才回港。他不可能在2005年8月10日在醫院內參與被告人聲稱的股東特別會議，或在當日簽署有關股東決議。我重覆我第一份証人陳述書第24段內容。

9. 亦因為這個原因，在2005年9月伯爵園會議中，黎松輝並沒有參與。在2005年9月的伯爵園會議，參與的只有黎松江、黎松坤及本人。黎松發只於會議完結後才到達伯爵園。

10. 被告人聲稱2005年9至10月黎松江、黎松輝、黎松發及黎松禧於一個被告人董事會/股東會上通過決議，以借貸方式繼續協助黎松坤。我不是被告人的董事或股東，不清楚當時被告人是否有舉行過董事會/股東會，但如以上所述，黎松輝不可能參與此會議或簽署任何議案。

11. 我已透過律師要求被告人/黎松輝披露他在有關時段的出入境紀錄，但被告人律師以黎松輝使用“e-通道”出入境為理由拒絕披露，現將有關信件列為附件 5。”

30.  Fat replies to such allegations by the Plaintiff in his evidence.  He says that the brothers were aware of the changed room numbers of Kwan.  He referred to an incident which occurred in the middle of the night on 30 June 2005.  When he was sleeping at home, the Plaintiff rang him.  The Plaintiff told him that Kwan was in trouble because he had kicked the night shift private nurse who then reported the matter to the police.  The Plaintiff told him to go to Room 813 in the hospital to see Kwan.  Fat then went to the hospital to see Kwan and then to the Kowloon City Police Station to see the nurse.  He managed to pacify the nurse who then withdrew the complaint.  There has been produced in evidence newspaper clippings about this incident.

31.  Fat says he then went back to the hospital to tell Kwan about the outcome.  Kwan was very grateful and asked Fat to visit him more often.  Thereafter, Fat visited Kwan about twice a week.  Whenever there was a change of room, either Kwan would ring to tell him about the new room number or the maid who visited Kwan everyday would tell Fai (who was also living at Earl Gardens) about the same.

32.  As regards the allegation by the Plaintiff that Fai had gone to the United States since July 2005 and did not return to Hong Kong until July 2006, there is in fact produced evidence obtained from the Immigration Department regarding the travel records of Fai.  It shows clearly that in the year 2005 Fai did not travel out of Hong Kong until 14 November 2005.  The Plaintiff therefore had to amend the part of her Supplemental Witness Statement set out in paragraph 29 above and withdraw her allegation that the said resolution and loan agreement could not have been genuine because Fai who was supposed to have taken part was not in Hong Kong on 10 August 2005.

33.  In the above circumstances, I reject the evidence and allegations of the Plaintiff.  I find as a fact that the said resolution was passed as recorded in the document and that Kwan did enter into the loan agreement with the Defendant on 10 August 2005.

The Meeting

34.  I next deal with the Meeting.

35.  The Plaintiff gives evidence about the Meeting in her Witness Statement dated 12 January 2010 as follows: -

“伯爵園會議

26. 二零零五年九月，黎松江喺美國返咗嚟。我要求同佢見面，初時佢都係唔肯見我，卒之佢就話上嚟我寫字樓見我，我就話唔好，我覺得大家應該一齊去伯爵園，因為而家係傾黎松坤嘅問題所以黎松坤應該在場，等黎松坤有咩嘢要求都可以同黎松江提出，或者黎松江佢哋想黎松坤點，都可以直接同黎松坤講，唔可以淨係單獨得我同黎松江兩個講。我約黎松江九月十七號星期六去伯爵園見面，佢又唔肯。跟住九月十九號星期一(中秋節翌日假期)佢都係唔肯。終於佢話九月二十號朝頭早八點鐘喺伯爵園見。呢個時間對我好唔方便，因為我係做股票買賣，最遲九點半已經要開始做嘢。都唔明點解禮拜尾同公眾假期都唔可以見，硬係要安排喺我返工嘅時候見，但係我都冇辦法，為咗盡量幫黎松坤解決佢個問題，我都係冇得揀，唯有照黎松江意思星期二喺伯爵園見面。

27. 到咗星期二朝頭早，我大概七點十個字去到伯爵園，當我入咗大廈嘅鐵閘後，咁啱就見到黎松江準備搭車立(電梯)上樓，咁我就同佢講聲早晨，跟住我哋一齊搭車立(電梯)。喺車立(電梯)裏面，黎松江就同我講「黎松坤好彩得你呢個家姐啫，查實佢真係要多謝你。」我無講嘢淨係對佢笑一笑。上到去，黎美蓮開門招呼咗我哋入去坐，當時黎松坤都唔喺客廳。晚黑嘅蘇姑娘見到我哋嚟咗，佢就扶住黎松坤拐下拐下，揸住個四腳架由個房度行出嚟，蘇姑娘安排咗黎松坤坐喺嗰張單人梳化椅度，黎松坤都坐得唔係好穩，就好似瞓咗喺度咁，好似會就嚟跣落嚟咁樣。黎美蓮同我哋打完招呼之後就返咗入房。蘇姑娘亦都同日間嘅陳姑娘交咗更，蘇姑娘亦都走咗嘞。日間嘅陳姑娘由於唔想打攪我哋傾嘢，所以佢亦都入咗房，客廳就淨喺有黎松江、黎松坤同埋我三個人。黎松江喺電視機前面行來行去，卒之佢就開聲同我同埋黎松坤講「嗱，而家已經冇咗阿公架嘞，咁你黎松坤又話冇錢睇醫生嘞，咁啦，一係搵人幫手開支票畀番錢呢啲醫院呀、醫生呀、護士社先啦，咁然後我哋再畀番錢呢個人啦，查實呢度都冇邊個人架嘞，三家姐，你幫手開支票畀呢啲醫院同埋醫生好唔好呀?」咁我話「好吖」，咁跟住黎松江就同黎松坤講「嗱，而家咁嘅安排好唔好呀?」咁就當你借咗我哋Lai & Son嘅錢個囉噃。」咁黎松坤就好軟弱咁講「好吖」。

28. 根據我嘅理解，黎松江口中嘅「阿公」係指我哋爸爸黎福，黎福就已經死咗喇，每個人如果要用錢就要用番自己嘅錢，而黎松坤喺被告人公司係有股份嘅，所以被告人公司同佢出咗錢黎松坤就要用佢喺被告人公司裏面嘅錢還番比被告人公司。而黎松江口中「我哋再畀番錢呢個人」嘅「我哋」一定係指友被告人公司，因為黎松江後來同黎松坤指出當黎松坤借咗“Lai & Son”錢，所以唯一合理嘅解釋就係被告人公司會還錢俾我，然後黎松坤就會爭被告人公司錢。

29. 因為黎松江係話過一定會照顧同睇住黎松坤呢個細佬，而家黎松江又應承咗會用佢哋“Lai & Son”嘅錢畀番錢幫咗黎松坤畀醫藥費嗰個人，而“Lai & Son”又一定可以負擔得起呢啲醫藥費，所以成件就事去到呢度我就覺得係有一個完滿嘅解決喇。跟住我就入咗廚房去搵個工人叫佢斟杯茶畀黎松江飲。黎美蓮亦都喺佢個房度出嚟問我哋食咗早餐未。咁我就話「阿妹，你睇你個頭髮好長喎，細佬啱啱先出咗醫院呀，好容易受到感染個噃，你嘅頭髮咁長，有好多細菌個噃，好唔好快啲去剪頭髮呀?」黎美蓮就話「好呀」，然後黎松江就同我講「呀，三家姐，成八點半囉喎，你夠鐘返工囉噃。」咁跟住我就離開咗伯爵園。”

36.  No doubt, in giving the minute details of her efforts in trying to fix an appointment with Kong in paragraph 26 of her Witness Statement as set out in paragraph 35 above, the Plaintiff was trying to lend credence to her evidence overall.

37.  The defence has produced copies of the air ticket and boarding pass regarding the trip of Kong from Los Angeles to Hong Kong which show clearly that he only arrived back in Hong Kong on about 25 September 2005.  That, coupled with the fact that Kwan was discharged from hospital only on 17 September 2005, shows that what was said in paragraph 26 of the Plaintiff’s Witness Statement cannot be true.

38.  Once again, the Plaintiff was forced to change her evidence at the beginning of her examination-in-chief, despite the fact that she had condescended to such minute details.  Such conduct on the part of the Plaintiff must necessarily cast doubt on her veracity and general credibility.

39.  Both Kong and Fat have given evidence about the Meeting.  They say that it was an informal meeting of family members held at the request of Kwan for the purpose of discussing how his medical expenses could be met.  Fat was present throughout but Fai walked in and out and did not take part in the discussion.  They firmly deny that any agreement of any sort was arrived at between the persons present.

40.  On the Plaintiff’s own case, the only persons who took part in arriving at the alleged agreement were herself, Kwan and Kong, because Fat only arrived much later.

41.  I find it highly improbable that Kong, being a person who normally resided in Los Angeles, would commit the Defendant to entering into the alleged agreement just like that, without having had any discussion with his brothers, the other shareholders and directors, especially Fat who was obviously in charge of the management of the Defendant.  He would have been committing the Defendant in respect of what was described as a “black hole” or “bottomless pit” and would be equivalent to signing a blank cheque on behalf of the Defendant.

42.  I find Kong and Fat to be straightforward and credible witnesses and I accept their evidence of what happened at the Meeting.  On the other hand, I find the Plaintiff to be an evasive and unreliable witness.  I reject most of her evidence regarding the Meeting.

43.  In all the above circumstances, I find as a fact that no agreement of any sort was arrived between the Plaintiff and the Defendant as alleged or at all.

44.  Such conclusion is consistent with and supported by the evidence regarding the attitude of the brothers towards the high level of treatment received by Kwan and the resultant high expenditure, the Open Letter, the withdrawal by Fai as a guarantor for the hospital fees and the said resolution and loan agreement which I have dealt with above.

Events After The Meeting

45.  I shall also refer to some events after the date of the Meeting which are more consistent with the Defendant’s version of what happened than with the Plaintiff’s allegation about the alleged oral agreement.

46.  There has been produced in evidence a copy of the minutes of an EGM of the Defendant held on 31 March 2006 at which Fat, Fai, Kwan and Hei were present.  A resolution was passed whereby the Defendant ratified and confirmed a loan to Kwan in the sum of $1,913,527.00.

47.  There has also been produced in evidence a bundle of monthly breakdowns of medical fees for Kwan starting from October 2005 to July 2008.  Each monthly breakdown had attached to it the supporting invoices.  Most of the monthly breakdowns were signed by the Plaintiff as well as Kwan.  The monthly breakdowns represent the payments of medical fees by the Plaintiff with cheques issued by Win Full.

48.  It is common ground that after the receipt of each monthly breakdown, the Defendant would issue a cheque drawn in favour not of the Plaintiff but of Kwan.  It is also common ground that the Plaintiff would pay such cheques into a joint account in the names of herself and Kwan.

49.  Furthermore, there is produced in evidence an audit confirmation signed by Kwan on 16 September 2008 whereby he acknowledged for audit purposes his indebtedness to the Defendant in the sum of $3,551,284.80 as at 31 March 2008.

50.  All such events and documents are consistent with the Defendant’s allegation that the Defendant was lending money to Kwan to defray his medical expenses rather than the Plaintiff’s allegation that the Defendant had agreed to reimburse her for medical expenses which she had paid and would pay on behalf of Kwan.

51.  Furthermore, it does not appear that the Plaintiff had ever demanded from the Defendant payment of the medical expenses which she had paid for Kwan for the period between June and September 2005 until the letter before action dated 6 February 2009 by her then solicitors to the Defendant.

52.  For the month of October 2005, the breakdown presented to the Defendant was for the sum of $52,313.00.  The Defendant duly drew a cheque dated 14 December 2005 in favour of Kwan in the same amount.

53.  If there had been the oral agreement as alleged by the Plaintiff, there would have been no reason why she did not demand for payment of the medical expenses for the period between June and September 2005 on the same occasion.

54.  When questioned about this in cross-examination, the Plaintiff said that she had handed the breakdown for the month of June 2005 together with the breakdown for October 2005 to Fat on the same occasion.  It is to be noted that she never said so in any of her pleadings or witness statements.  Furthermore, there would have been no reason why the Defendant would only pay according to the breakdown for October 2005 but not that for June 2005.

55.  The Plaintiff was further cross-examined about the breakdowns for July, August and September 2005.  She just said that she could not remember when they were handed to the Defendant.

56.  It is also to be noted that the font and appearance of the breakdowns for June, July, August and September 2005 are different from those of the breakdowns for October 2005 onwards.  The former also do not bear any signature by the Plaintiff and Kwan.

57.  I do not accept the Plaintiff’s explanation.  I suspect that the breakdowns for June, July, August and September 2005 were produced much later and not presented to the Defendant as alleged by the Plaintiff.

58.  This again militates against the Plaintiff’s allegation that an oral agreement was arrived at during the Meeting.

59.  The total medical expenses for the period between November and January 2007 amounted to $1,400,279.00.  According to Fat, the Defendant thought that the amount was too large.  He had a discussion with Kwan who agreed to defray part of that in the sum of $460,000.00 with his own resources.  Thus, the Defendant only issued a cheque to Kwan in the sum of $940,279.00 instead of the full amount of $1,400,279.00.

60.  I accept the evidence of Fat in this regard. This again militates against the Plaintiff’s story.

Conclusion

61.  As I have mentioned earlier, I have given the main reasons why I find against the Plaintiff.  Such reasons are by no means exhaustive.

62.  Near the end of the hearing, a copy of the reply dated 16 February 2009 by Messrs. Chui and Lau, the solicitors for the Defendant, to the letter before action dated 9 February 2009 from Messrs. Mayer-Brown JSM, the then solicitors for the Plaintiff, was produced in court.  After having set out the defence case, Messrs. Chui and Lau continued as follows: -

“3. As said in the above, the person who was primarily responsible for the payment of the Bills was Kwan. As he passed away, his estate should be responsible.

4. According to the information preliminarily available to our clients, the estate of Kwan may be solvent and may be in a position, subject to verification and subject to no substantial claims being made against the estate, to repay the Outstanding Sum to your client after the Letters of Administration is issued to our clients.

5. In the capacity of the administrators of the estate of Kwan, our clients have a statutory duty to pay the debt due by Kwan and an equal duty to verify the claims. As such, would you please request your client to let us:

(a) have all the documentary evidence inclusive of copies of the Bills as well as the payments made by your client for Kwan;

(b) have all the documentary evidence inclusive copies of the cheques to verify the total amounts Kwan had repaid your client in this regard;

(c) know whether your client is in possession of any assets belonged to the estate and if so, let our clients have the details of the same and the supporting documents thereof;

(d) know whether the estate owed your client other debts (other than the Outstanding Sum) and if so, details and the supporting documents thereof.

6. Your early reply is much appreciated, as it will definitely assist our clients in applying for the Grant of the Estate.”

63.  I do not know whether there was any response by the Plaintiff or her solicitors to this letter.  On the same date of the letter, i.e. 16 February 2009, however, the Writ of Summons in this action was issued.  The Statement of Claim was then filed on 30 March 2009.  As I see it, the dispute here could have been solved without much difficulty if the Plaintiff had proceeded along the lines suggested by Messrs. Chui and Lau rather than resorting to litigation.

64.  In all the circumstances set out above, I dismiss the Plaintiff’s claim.  I make an order nisi that the Plaintiff should pay the costs of the action to the Defendant such costs to be taxed if not agreed.  I certify the case fit for two Counsel.