LINKS INTERNATIONAL RELOCATIONS LTD t/a LINKS RELOCATIONS v. SWIFT CHRISTOPHER LEE

HCMP 857/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 857 OF 2014

(ON AN INTENDED APPEAL FROM DCCJ NO. 817 OF 2012)

________________________

________________________

________________________

D E C I S I O N

________________________

Hon Cheung JA (giving Decision of the Court) :

1. Deputy District Judge Ludwig Ng awarded the plaintiff $27,780.00 as storage and handling charges of 83 bottles of wine that the plaintiff had stored for the defendant. The plaintiff’s case is briefly that it had agreed to deliver the wine from Hong Kong to Tokyo for the defendant where he was to be relocated. But as the defendant failed to provide it with the required documents for custom clearance, it had to store the wine and charge the defendant for the storage. The amount awarded was based on quantum meruit.

2. The defendant applies for leave to appeal, leave having been refused by the Judge. We will refuse to grant leave as we are not satisfied that the defendant has shown any reasonable prospect of success of his appeal.

1)   The Judge’s alleged failure to evaluate the evidence concerning the A&O Meeting had to be considered in context.  The defendant had never pleaded that the contract which was evidenced by the Quotation and signed by him was terminated at that meeting.  The defendant merely pleaded that the plaintiff was negligent in not delivering the wine.

2)   Despite the defendant’s pleaded admission that it was reasonable for the plaintiff to assert on 12 December 2008 that the wine would be stored and a charge be levied and that the defendant would have been fairly responsible for reasonable storage, the defendant had never pleaded that the storage charge should be based on the charge that appeared on the Quotation.  It is simply too late to rely on this point.

3) Arguments that the Judge had erred in implying a term entitling the plaintiff to claim reasonable storage charges likewise fails.

4) Arguments in relation to the test of ‘reasonable person in the defendant’s position’ under quantum meruit do not carry the matter further.  The defendant’s position hardly has any bearing on the market charge for storage of wine.

5) The Judge’s finding on lien is well supported by the plaintiff keeping the wine in temperature control storage.

6) The Judge had not erred in his discretion to allow the plaintiff’s amendment without paying penalty costs.

3.  In any event the Court will not grant leave in the interest of procedural economy and proportionality by reference to CWG v MH and others [2014] 1 HKLRD 838 : the defendant had his day in court by having the case transferred from the Small Claims Tribunal to the District Court with a three day trial followed by detailed written submissions.

4.  The defendant is to pay the plaintiff’s costs of the application summarily assessed at $48,000.00.

5.  We are of the view that the application is totally without merits.  We will, pursuant to Order 59 Rule 2A(8), further order that the defendant is not entitled to apply for an oral hearing to reconsider his application.