PETRUS CORNELIS BREED v. VELO CITI LTD AND ANOTHER

HCSA 7/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO 7 OF 2017

(ON APPEAL FROM SMALL CLAIMS TRIBUNAL CLAIM

NO 8754 OF 2015)

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JUDGMENT

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Introduction

1.  This is the application for leave to appeal by the Claimant (C) against the judgment of the Deputy Adjudicator, Ms Shannon Leung (“the Adjudicator”), first given on 1 December 2016 and subsequently varied upon review on 7 February 2017.  In short, C is not satisfied with the amount of the award which the Adjudicator made in his favour and which he says was calculated on a wrong basis.

Background

2.  Briefly stated, the Claimant and the 2^nd Defendant (D2) worked together to build a pizza oven for a restaurant for $70,000 and the 1^st Defendant (D1), which was a company of D2, was used by them to receive the project price.  Before the oven was completed, however, a disagreement arose between C and D2 resulting in C walking out of the project halfway.  Afterwards, D2 paid $7,000 to C for the latter’s work done.  That led to C filing a claim against D1 and D2 for the project price, asserting that the project actually belonged to him alone and that D2 only worked for him as an employee.  C said that he had never had any discussion with D2 as to how the project price should split between them and he even went so far as to say that D2 had agreed to work for free.  On the other hand, D2’s case was that he was an equal partner of C in the project and he counterclaimed against C for, among other things, loss of business opportunity to build a second oven for the restaurant.

Findings by the Adjudicator

3.  The Adjudicator rejected C’s evidence and found as a fact that C and D2 had been equal partners in the project by an oral agreement and that finishing the work together was a condition of that agreement.  She found, however, that C was in repudiatory breach of the oral agreement by walking out in the middle.  The Adjudicator found that C had only done around 25% of the project and therefore he was only entitled to $17,500 on a quantum meruit basis.  After deducting the $7,000 which C had already received, the Adjudicator originally allowed C’s claim to be extent of $10,500.  Subsequently, on review, upon receipts on expenses being produced by both parties, the Adjudicator adjusted C’s award upwards to the sum of $12,709.75, with the rest of her decision remained unchanged.

Ground of Appeal

4.  In Form 9, C put his ground of appeal as follows:

“The defendant has stated multiple times in writing that he feels I am entitled to 50% of the contract sum minus costs but I was awarded only 25% of the contract sum minus cost.”

5.  In court, C raised a further point that the Adjudicator was wrong in finding that the work done by him amounted only to 25% of the project.  C said he had already completed his part of the work which he had agreed with D2 and therefore he should be paid 50% of the project, as D2 acknowledged in his emails to him.

Consideration

6.  As to C’s ground of appeal stated in Form 9, I have the following observations:

(i) In fact, D2 had not said that he felt C was entitled to 50% of the contract sum.  What D2 was saying in his various emails to C after their disputes arose was (i) that he denied that he was an employee of C in the project and he had always viewed himself as C’s “50 – 50” partner; and (ii) after the disputes arose, he had offered to settle the dispute by paying C half of the contract price but that offer had not been taken up by C.

(ii) The ground of appeal put forward by C is really not a point of law.

7.  Regarding the further point raised by C in court, I have checked through the transcript of the proceedings before the Adjudicator and her judgment.  However, I am unable to find any evidence to the effect that C had agreed with D2 to do only (the first) part of the project.  Indeed, the further point now raised by C is inconsistent with his case at the trial, which was that the whole project belonged to him and that D2 was only his employee.  Secondly, on the evidence D2’s offer to pay C 50% was only a settlement offer which had not been taken up.  Thirdly, based on what was before the Adjudicator, she was quite entitled to find as a fact that C had committed a repudiatory breach of the oral agreement (which she found to have existed) by walking out of the project before its completion, so as to enable D2 to treat himself as no longer being bound by the oral agreement.  Fourthly, I can find no mistake on point of law in her finding that C’s work done amounted only to about 25% of the project.

Conclusion

8.  According to s 28 of the Small Claims Tribunal Ordinance, Cap 338, this court can only grant leave to appeal on (i) any ground involving a question of law or (ii) the ground that the claim was outside the jurisdiction of the tribunal.  However, in the present case none of the above is involved.  C’s complaint is really about the assessment of credibility of witnesses and the findings of fact which are generally within the province of the Adjudicator.  In the circumstances, this court is not in a positon to grant any leave to appeal: James Manuel Ho & Anor v Grand Pacific Vacation (Hong Kong) Limited, HCSA 5/2004.

9.  Based on the above, C’s application for leave to appeal is dismissed.  There is no order as to costs for this application.