ONEPLATFORM WEALTH MANAGEMENT LTD v. CHIK KAR LUN KARISON

DCCJ 5157/2023

[2025] HKDC 2021

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5157 OF 2023

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DECISION

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Background

1.  This is an appeal (“Appeal”) against the Order of Master Vivian Lee dated 2 May 2025 (“Order”).

2.  The Plaintiff and the Defendant entered into a Contract for Service on 29 November 2021 (“OWM Contract”) under which the Defendant was engaged as an independent consultant.

3.  Under the OWM Contract, certain bonuses and commission paid to the Defendant would have to be repaid to the Plaintiff upon termination of the OWM Contract by the Defendant, under the relevant “clawback clause” of the OWM Contract. The Plaintiff’s claim herein is for the repayment of HK$490,990.01 in bonuses and commission.

4.  In order to put the Appeal into context, the following procedural history is relevant:

(a)  On 17 September 2024, Master Charmaine Lo made an unless order that the Defendant shall file and serve his Defence and Counterclaim by 4:00 pm on 15 October 2024, the Defendant shall be debarred from doing so (“Unless Order”);

(b)  On 15 October 2024, the Plaintiff and the Defendant entered into a Tomlin order (“Tomlin Order”), which provides that all proceedings herein should be stayed save for the enforcement of the terms as contained in the Schedule thereto. The Schedule provides inter alia that (i) on a without admission of liability basis, in full and final settlement of this action and all its underlying matters, the Defendant shall pay to the Plaintiff a sum of HK$250,000 on or before 7 November 2024, and (ii) in the event of the Defendant’s non-compliance with the above, the Plaintiff shall be at liberty and shall be entitled to reinstate the present action by applying for judgment as per the reliefs prayed for in the Statement of Claim, and to enforce the judgment obtained;

(c)  Pursuant to the aforesaid terms, the Defendant drew a cheque in the amount of HK$250,000, which was dishonoured upon presentation;

(d)  On 4 December 2024, the Plaintiff filed its ex parte application for judgment against the Defendant;

(e)  On 16 December 2024, the Senior Judicial Clerk of the Court raised a requisition that the draft judgment could not be approved as the whole action was stayed pursuant to the Tomlin Order;

(f)  On 3 January 2025, the Defendant’s previous legal representatives (Messrs Chak & Associates LLP (“C&A”)) applied to cease to act for the Defendant, which was granted by the Order of Master Vivian Lee on 11 February 2025. Subsequently, on 24 March 2025, the Defendant’s current legal representatives (Messrs David Fenn & Co (“DF&Co”)) filed a notice to act for the Defendant;

(g)  On 31 March 2025, the Defendant took out a time summons (“D’s Time Summons”) for 28 days to file and serve his Defence and Counterclaim;

(h)  On 16 April 2025, the Plaintiff filed a Summons (“P’s Summons”) supported by the 2^nd Affidavit of Tsoi Hannah Wynne, seeking to lift the stay under the Tomlin Order and for judgment to be entered in favour of the Plaintiff against the Defendant for the payment of HK$490,990.01 (together with interest) as claimed in the Statement of Claim;

(i)  On 30 April 2025, the Defendant filed a Summons seeking leave to withdraw D’s Time Summons;

(j)  The matter came before Master Vivian Lee on 2 May 2025, who made the Order, which provides inter alia that:

(i)  The stay under the Tomlin Order be lifted;

(ii)  Judgment be entered in favour of the Plaintiff that the Defendant do pay to the Plaintiff the sum of HK$490,990.01 (with interest);

(iii)  Costs of this action be paid by the Defendant to the Plaintiff, to be taxed if not agreed;

(iv)  Leave be granted to the Defendant to withdraw the Time Summons.

The present appeal

5.  The Defendant appeals against the Order (“Appeal”). In purported support of the Appeal, the 1^st Affirmation of the Defendant (“Chik 1^st”) was filed without leave from the Court.

6.  The Plaintiff submits that Chik 1^st should be expunged, as no further evidence may be received on the hearing of an appeal under O 58 of the Rules of District Court except on special grounds. The Courts have held that such special grounds are akin to the Ladd v Marshall conditions (see Hong Kong Civil Procedure 2025 at Note 58/1/3), which include:

(a)  The new evidence could not have been obtained with reasonable diligence for use at the hearing below;

(b)  The new evidence must be of such a nature that, if admitted, would probably have an important influence on the result of the case; and

(c)  The new evidence must be believable on its face.

7.  I have considered Chik 1^st on a de bene esse basis. For reasons to be elaborated further below, I do not consider that such new evidence, if admitted, would have any important influence on the result of the case. I shall therefore expunge Chik 1^st.

8.  The Notice of Appeal sought inter alia the following orders:

(a)  The Order (and the Judgment entered thereunder against the Defendant) be set aside; and

(b)  Leave be granted to take out an application to set aside the Tomlin Order within 28 days.

9.  In Chik 1^st, the Defendant explained how he was entitled to Production Bonus of HK$610,224.16 (“PB Bonus”) under the OWM Contract. It was further alleged that, before entering into the Tomlin Order, C&A failed to advise the Defendant as to his right to make a counterclaim against the Plaintiff. Consequently, the Defendant did not file a Defence and Counterclaim before the deadline imposed by the Unless Order, and agreed to the Tomlin Order.

10.  The Defendant further said that he was only made aware of his right to make a counterclaim against the Plaintiff regarding the PB Bonus after consultation with DF&Co.

Legal principles

11.  An appeal from a Master’s decision under O.58 Rules of District Court is conducted by way of a hearing de novo. See Hong Kong Civil Procedure 2025 at Note 58/1/2.

12.  The terms of settlement embodied in the Schedule to a Tomlin Order may be enforced by making an application to the Court by way of summons, without the need of any fresh action to be commenced. See Lu Yongde v Allan Yap [2025] HKCFI 1023 at paragraph 56, per DHCJ Andrew Li.

13.  The Schedule to the Tomlin Order constitutes a separate and binding contract between the parties. In an application to enforce the terms of the Schedule to a Tomlin Order, the burden is on the respondent to raise a triable issue, failing which the relief to enforce the terms set out in the schedule may be granted directly. See Ng Tung v Fulland International Ltd[2024] HKCFI 2630 at paragraph 34, per Mimmie Chan J.

Analysis

14.  It is difficult to see how the matters raised in Chik 1^st could be sufficient to raise a triable issue regarding the enforceability of the Tomlin Order and its Schedule.

15.  Firstly, is not disputed that the Defendant has failed to make the payment of HK$250,000 required under the terms of the Schedule to the Tomlin Order.

16.  This breach entitles the Plaintiff to enter judgment and enforce the same under Clause 4 of the Schedule to the Tomlin Order, which provides:

“In the event of the Defendant’s non-compliance with the above, the Plaintiff shall be at liberty and shall be entitled to reinstate this Action by applying for judgment as per the reliefs prayed for in the Plaintiff’s Statement of Claim filed in this Action on 15 March 2024 and to enforce the judgment thus obtained.”

17.  Secondly, the fact that the Defendant’s former solicitors have “misrepresented” and/or wrongfully advised the Defendant in the settlement embodied in the Tomlin Order dose not entitle the Defendant to set aside the same. There is no evidence at all that the Plaintiff somehow had actual, imputed or constructive knowledge of such wrongful acts of the Defendant’s former solicitors.

18.  The Defendant was unable to submit any authority in support of the proposition that the wrongful advice given by a party’s solicitors constitutes a ground for setting aside a Tomlin Order.

19.  In fact, in Ng Tung, Mimmie Chan J said in paragraph 35 of the judgment:

“35. As pointed out in the preceding paragraphs, Mr Ng’s claims of

pressure, duress and undue influence are made not against the Defendants, but against his own lawyers. This Court has not heard evidence from Mr Ng’s former lawyers, and no findings are made in any way against them. What is pertinent is that Mr Ng has not even alleged that the Defendants have actual, imputed, or constructive knowledge of any undue influence or illegitimate pressure having been exerted against Mr Ng by his own lawyers, and on the facts, there is nothing to suggest to this Court that the Defendants knew, or could or should have known of any facts, which may put them on enquiry as to whether Mr Ng had given his true consent to the terms of settlement, when he signed the Schedule. In circumstances when parties are adversaries in litigation, each can only leave it to the other side to seek and obtain advice from its own lawyers, and each would be entitled to assume that the terms of any settlement had been explained to and are understood and consented to by the other side, without any cause for concern as to whether such consent had been improperly obtained.

36. Short of any actual, imputed or constructive knowledge of any undue influence, or illegitimate pressure or duress having been exerted on Mr Ng, there is no basis for this Court to find that the settlement terms set out in the Schedule should not bind either Mr Ng or the Defendants.” [underline added]

20.  Thirdly, regarding the question of whether enforcement of the judgment against the Defendant should be stayed pending the Defendant’s alleged counterclaim for the PB Bonus, my view is that a stay is inappropriate.

(a)  There is no counterclaim on foot regarding the PB Bonus;

(b)  Staying enforcement of the judgment against the Defendant would be inconsistent with Clause 4 of the Schedule to the Tomlin Order, which provides for the right of the Plaintiff to enforce the judgment obtained.

21.  I see no merit at all in this Appeal.

Conclusion

22.  The Appeal is dismissed. I shall also make an order nisi that Costs of the Appeal should be paid by the Defendant to the Plaintiff, with certificate of counsel, to be taxed if not agreed.

23.  I thank counsel for their submissions.